Opinion
31014.
DECIDED SEPTEMBER 29, 1945.
Damages; from Richmond city court — Judge Chambers. July 10, 1945.
Lee, Congdon Fulcher, for plaintiff in error.
Curry Curry, contra.
There being no evidence that the plaintiff by the exercise of ordinary care could not have seen the stool left in the aisle of the defendant's drug store and avoided falling over it, the verdict for her was unauthorized, and the court erred in overruling the motion for new trial on the general grounds.
DECIDED SEPTEMBER 29, 1945.
Miss Gaines Story sued Lane Drug Stores Inc. for damages for personal injuries, alleged to have been caused by falling over a stool in the aisle of the defendant's store in Augusta, Georgia. The petition as amended alleged: "The stool that had been placed in the aisle of defendant's store and upon which plaintiff stumbled and fell was dark in color and so nearly matched the color of the floor that it was not seen by plaintiff; that said stool had a flat platform about twelve inches from front to back and was about eighteen inches wide. The distance from the floor of the building to the top of the platform of the stool was about twelve inches; that the said stool is used in and about the store for the purpose of standing on same to reach some article or thing out of the natural reach of the person using the stool, and the leaving of the stool in the aisle was an unusual act on the part of the defendant." It was alleged that the defendant was negligent in the following particulars: (a) in placing the stool in the aisle where the plaintiff was invited to walk, (b) in permitting the stool to remain in the aisle where the plaintiff and other customers could be thrown to the floor, and (c) in failing to keep its aisle in a safe condition for the public to walk in as they were about to purchase drugs and other articles of merchandise. The jury found for the plaintiff, and the defendant excepted to the overruling of its amended motion for new trial. The plaintiff testified: "I went into the Lane Drug Store on February 19, 1942, to buy some little toilet articles. I walked down the aisle and fell over a little dining stool. The aisle I walked down was the one toward White's store. I got about to the middle of this aisle before I came in contact with this stool. It was a very little round stool like you climb up on, and I could not see it so well, and I fell over it and I hurt my knee. . . I did not put my finger on it, but the stool was very dirty. My stocking did not get dirty off the floor, it got dirty off the stool."
The evidence fails to show negligence on the part of the defendant. The rule of law as to the duty of the occupier of premises to an invitee applies to hidden defects and to those not discoverable by the invitee by the exercise of ordinary care. Coffer v. Bradshaw, 46 Ga. App. 143 ( 167 S.E. 119); Day v. Trion Co., 56 Ga. App. 1 ( 192 S.E. 88); Lebby v. Atlanta Realty Corp., 25 Ga. App. 369 ( 103 S.E. 433). Therefore, in order to show negligence in this case, the plaintiff must show that she could not have seen the stool in the exercise of ordinary care. If she saw the stool at all, it would seem that she would have avoided falling over it. Counsel for the plaintiff (below) argue that the stool was so nearly the same color as the floor that she did not see it. There is an allegation in the petition to this effect, but there is no such testimony in the brief of evidence. Construing her testimony most strongly against her, she saw the stool, and does not give any reason why she could not have seen it more plainly or why she could not have seen it in the exercise of ordinary care. There is no evidence that the plaintiff's eyesight was bad or that the defendant knew of it, or that there was some occurrence to throw the plaintiff off her guard, or that any other facts existed which would render the defendant liable. Rolleston v. Cassirer, 3 Ga. App. 161 ( 59 S.E. 442). The court erred in overruling the motion for new trial on the general grounds. There is no merit in the grounds of the amended motion for new trial.
Judgment reversed. Sutton, P. J., and Parker, J., concur.