Watson v. Mccrory Stores, Inc., 97 Ga. App. 516, 103 S.E.2d 648 (1958)

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Walter B. Fincher, for plaintiff in error.

1. In an action for damages for injuries received by an invitee of a store as a result of falling upon a stairway, under Code 105-401 imposing upon the owner or occupier of land the duty of exercising ordinary care to keep the premises in safe condition as to invitees, the plaintiff, as against general demurrer, must allege negligence on the part of the defendant without at the same time barring herself from recovery by showing, through other facts, that she failed to exercise ordinary care for her own safety. Pilgreen v. Hanson, 89 Ga. App. 703 (81 S. E. 2d 18); Hill v. Davison-Paxon Co., 80 Ga. App. 840 (57 S. E. 2d 680). Here, the petition alleges in substance that the plaintiff descended from the first floor to the basement of McCrory's, an Atlanta ten-cent store, by means of a marble or granite stairway, having 13 steps to a landing, 9 steps to another landing, then a turn and 3 steps to the basement floor, that a handrail was provided in the center of the stairway separating the movement of upward and downward traffic; that the steps were 8 or 9 feet long, 8 inches high and 8 inches in depth, that at that time, because of Christmas decorations, the ceiling light to illuminate the stairway was partially obscured and insufficient to give adequate light to the stairway and particularly the lower part so that it rendered it difficult to see the steps; that it was very difficult for the plaintiff to make out clearly the width and depth of each step of this stairway from the first landing downward; that the dimness and other conditions alleged caused the steps to be deceptive; that as she proceeded downward the deception increased; that the luminous rays cast by the decorated lights, and the crowded condition of the store combined to render the lower portion of the steps dangerous and unsafe; that primarily because of the murky illumination she was unable to ascertain "whether said steps were six inches wide and could not tell the exact depth thereof and she did take a step and her right foot missed the step, save tip of her heel, and she did stumble, falter and tumble" to the basement floor.

From these allegations it appears that the plaintiff had descended 21 of the 25 steps when she slipped and fell. She complains that due to the dim light she could not tell the rise or tread of the steps, and if, under these circumstances, the defendant had negligently inserted a step of a different shape or color, and thus caused her to lose her footing, an action might lie. Fuller v. Louis Steyerman & Sons, Inc., 91 Ga. App. 847 (87 S. E. 2d 432); Hendricks v. Jones, 80 Ga. App. 840, supra. The allegation in paragraph 10 that the plaintiff slipped because she stepped on some foreign matter is contradictory to the allegation in paragraph 9 that because she could not tell the width of the step her right foot missed the step and she stumbled, but assuming that both happened simultaneously, the allegations that the steps were congested with customers and their children who were "continually" dropping such matter thereon affirmatively show the impossibility of keeping the steps at all times and in all events absolutely free of such matter even with the greatest diligence. In Jones v. West End Theatre Co., 89 Ga. App. 903 (81 S. E. 2d 721). It does not appear from this petition that the defendant failed to use ordinary care to keep the stairway clean, or that it had actual knowledge of the foreign substance on which the plaintiff slipped. Accordingly, no actionable negligence is alleged.

The trial court did not err in sustaining the general demurrer to the petition.

Hurt, Gaines, Baird, Peek & Peabody, J. Corbett Peek, Jr., Robert F. Lyle, contra.

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