Opinion
38134.
DECIDED MARCH 18, 1960.
Action for damages; nonsuit. Jesup City Court. Before Judge Gibbs. October 28, 1959.
Adams Mattox, Ronald F. Adams, for plaintiff in error.
Thomas, Howard Moran, Joe Thomas, contra.
The trial court erred in granting a nonsuit since the plaintiff's evidence was sufficient to authorize the jury to find that she had proved her case as laid and it did not affirmatively appear therefrom that she was guilty of such contributory negligence as would bar her recovery.
DECIDED MARCH 18, 1960.
Mary Reeves sued Dave Madray in the City Court of Jesup for damages. The petition alleged in substance that the defendant was the owner of the Bon Air Motel Restaurant, situated on U.S. Highway 301 in Wayne County, Georgia; that he had leased the premises to one Barney Gilmore and that the plaintiff was employed by Gilmore in the kitchen of the said restaurant as a cook; that several days immediately prior to February 16, 1959 the defendant, acting by and through his agents and employees, excavated a portion of the concrete floor for the purpose of repairing a water pipe which had burst; that the excavation was about 12 inches in diameter and several inches deep, the exact depth being unknown to the plaintiff; that said hole was near the middle of the floor and near a table placed there by the defendant; that said table cast a heavy shadow over the portion of the floor where the hole was located; that a few days after the excavation was made, the defendant, or his agents and servants, caused the hole to be partially filled with paper and covered with a sheet of corrugated cardboard; that the plaintiff was unable to allege the exact dates or times when the excavation was made and when it was covered with paper or cardboard, but that the condition had existed for several days immediately prior to the incident complained of; that the defendant placed no sign or guardrail nor employed any other method of warning the plaintiff and other employees of the existence of said excavation; that on February 16, 1959, at about 10:30 a. m. the plaintiff was employed as cook in said premises as aforesaid and that she stepped on the said piece of cardboard covering the hole and upon doing so her foot penetrated the cardboard and entered the excavation; that as a result thereof her right leg was broken; that the plaintiff was without fault or negligence in the matter, and that the defendant was guilty of negligence in creating the excavation without placing a protective barrier surrounding the same and in permitting the table placed in the kitchen by the defendant to remain in a position so that it cast a dark shadow at the point where the excavation existed, as a result of which the plaintiff was unable to observe the same; and, guilty of negligence in making the excavation and leaving it unguarded and unattended; and, in filling it with paper and covering it with cardboard without placing a warning sign which would have advised the plaintiff of the existence of the excavation in the floor. The plaintiff set forth in her petition allegations specifying wherein she was injured and damaged as a result of the occurrence complained of.
A general demurrer to the petition was overruled.
In his answer the defendant admitted that he was the owner of the Bon Air Motel Restaurant; that he leased it to Barney Gilmore; that the plaintiff was employed by Barney Gilmore as a cook in the restaurant and was acting within the scope of employment on said premises, and that the kitchen used in connection with the restaurant was constructed with a concrete floor, and that the kitchen was a portion of the leased premises. On the trial of the case the plaintiff testified that she was employed by Barney Gilmore at $40 a week; she worked in the kitchen as a cook seven days a week, from 6 in the morning until 2 in the afternoon; that the floor in the kitchen where she worked was tile and cement; that in February, 1959, she suffered an accident when she stepped into a hole in the kitchen floor and broke the small bone in her right leg near the ankle; that the hole was at the end of the steam table and bread table, and near the stove; that it was in the direct path where she had to go in her employment; that the steam table cast a shadow where the hole was; that Tommy Woods dug the hole to repair a burst water line; that some of the work was done while she was there and some while she was not; that nobody told her that the hole had been filled up or that it had not been filled up; that "they had a piece of cardboard over it" and that she didn't know whether they had filled the hole, fixed it, or what, that the cardboard was over it. She also testified as to the nature of her injuries and as to the pain which she suffered and her loss of time on account thereof, and a doctor testified as to the medical aspects of her injury. At the conclusion of her evidence the defendant moved for a nonsuit, which motion the court granted, and the exception here is to that judgment.
"The only question is whether the evidence was sufficient to withstand a nonsuit. In deciding that question we must construe the evidence most strongly in favor of the plaintiff. Highsmith v. National Linen Service Corp., 63 Ga. App. 112 ( 10 S.E.2d 237); Watkins v. Dalton Coca-Cola Bottling Co., 66 Ga. App. 848 ( 19 S.E.2d 316); National Land Coal Co. v. Zugar, 171 Ga. 228 (2) ( 155 S.E. 7). A motion for nonsuit should not be granted when there is any evidence tending to sustain the plaintiff's action, or when the jury can fairly infer from the evidence a state of facts favorable to the plaintiff. Moseley v. Patterson, 27 Ga. App. 133, 135 ( 107 S.E. 623); Gresham v. Stewart, 31 Ga. App. 25, 27 ( 119 S.E. 445); Starr v. Greenwood, 48 Ga. App. 535, 540 ( 173 S.E. 243); Hawkins v. National Surety Corp., 63 Ga. App. 367, 372 ( 11 S.E.2d 250); East West R. Co. v. Sims, 80 Ga. 807 (2) ( 6 S.E. 595); Stephens v. Stephens, 168 Ga. 630, 645 ( 148 S.E. 522). The jury may, from facts proved, and sometimes from the absence of counter evidence, infer the existence of other facts reasonably and logically consequent on those proved. Code § 38-123." Mason v. Hall, 72 Ga. App. 867, 873, 874 ( 35 S.E.2d 478). "A nonsuit shall not be granted merely because the court would not allow a verdict for the plaintiff to stand; . . ." Code § 110-310. "Where a court passes upon a motion for a nonsuit it decides only one question, that is, do the allegation and the proof correspond? In sustaining such a motion the court does not hold that the plaintiff is not entitled, under the law, to recover on the facts alleged; neither does the overruling of the motion decide that the plaintiff is entitled under the law to recover. The right to recover under the facts alleged is not involved in the decision of such a motion. If a plaintiff `proves his case as laid,' he is entitled to prevail as against a nonsuit; but it by no means follows from this that he is entitled to recover on the facts `as laid.' Merely proving a fact will not in law authorize a recovery unless the existence of the fact proved gives a legal cause of action." Kelly v. Strouse Bros., 116 Ga. 872, 883 ( 43 S.E. 280). The rule as generally stated is that the defendant is not entitled to a nonsuit where the plaintiff has proved his case as laid without at the same time disproving his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict. Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17), and cits. Where, as in this case, however, the general demurrer has been overruled, that judgment, being unexcepted to, has become the law of the case that the plaintiff's petition sets forth a cause of action. Yarbrough v. Cantex Mfg. Co., 97 Ga. App. 438, 442 ( 103 S.E.2d 138).
Applying the foregoing rules to the case made by the plaintiff's evidence as compared with the allegations of the plaintiff's petition it is readily apparent from the facts stated above that the plaintiff substantially proved her case as laid. Whether or not she was guilty of such contributory negligence as would bar her recovery was clearly a jury question which ought not to have been decided by the grant of a nonsuit. Camp v. Curry-Arrington Co., 41 Ga. App. 53, 57 ( 151 S.E. 837); Hadaway v. Southern Ry. Co., 41 Ga. App. 669 ( 154 S.E. 296). The plaintiff, being an employee of the defendant's tenant, stood in the tenant's shoes ( Waddell v. Wofford Oil Co., 84 Ga. App. 617 (2), 66 S.E.2d 806), and the evidence did not demand a finding that she was guilty of such contributory negligence in using the portion of the premises where the work and repairs had been made as would bar a recovery since she testified that she had no actual or constructive knowledge of the condition creating a hazard to her in using the premises. Smith v. Stovall, 84 Ga. App. 103 (3) ( 65 S.E.2d 640).
It follows that the trial judge erred in granting a nonsuit.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.