The judge properly sustained the general demurrer and dismissed the petition.
DECIDED NOVEMBER 10, 1943. REHEARING DENIED DECEMBER 20, 1943.
The plaintiff sought to recover damages from the defendant, a corporation engaged in the sale of merchandise, for injuries alleged to have been caused by striking her foot against the bottom of some scales that were in the aisle of the defendant's store. She alleged that she was an invitee, having gone into the store for the purpose of purchasing merchandise; and that "at the time and place complained of the said defendant had in the front part of its store, near the candy counter, . . scales which were used by the customers of said defendant to weigh themselves upon by placing a penny in a slot attached to the scales. The scales were ordinarily placed up against the wall of the store, but on the occasion complained of the said scales had been removed two to three feet from the wall out into the aisleway over which customers passed going in and from said store; that the said store had three doors on the front leading from the sidewalk on Cherry Street into the store, one on each side of the store, and one in the middle. The prospective customer could enter the store from any one of the doors. The said scales usually were kept up against the wall of the store, and about two feet on the left side of the left front door facing the front of the said store near the candy counter. The platform of the scales, the part a person stands on to weigh, is about thirteen inches from front to the back, and about eleven and one-half inches wide. The length of the scales from front to back is about twenty-three inches. The upright piece at the back, the part the coin is deposited in, is about six inches wide and about four and a half feet high. The distance from the floor of the building to the bottom of the platform of the scales is about one inch. The scales are made of iron or steel and weigh about one hundred pounds. The candy counter looking toward the front and extending to about three feet of the front wall of the store. The scales at the time plaintiff was injured were in the aisleway, or passageway, over which customers passed going in and out of said store. The upright part of the scales, which is the back part, was pointing toward the corner of the store where the front wall and east wall come together, and the platform part of the scales was in the passageway over which customers went in and out of the store. That at the time her foot struck the bottom of said scales she was looking at some merchandise
displayed on the counter near her, and the scales not being in line of her vision she did not see them; that there was no duty on her to make any inspection of the aisleway or passageway to ascertain that it was safe before walking down the same, but there was a duty upon the said defendant, its agents and employees, to keep the aisleways, passageways, or walkways of the store safe and free from obstruction and defect, and if for any reason there were obstructions or defects in said passageways, it was the duty of said defendant and its agents to have given notice and warning to your petitioner or other customers that said obstructions or defects were there; that said defendant, at the time complained of, was operating a ten-cent store in said building, working more than twenty-five employees, some of whom were working about five or ten feet from the place where the scales were at the time plaintiff was injured. The said defendant, its agents and employees, knew said scales were in said passageway; but the plaintiff did not know, nor could she, by the exercise of ordinary care and diligence, have discovered that the said scales were in said passageway; that at the time and place complained of she was in exercise of ordinary care and diligence, and by the exercise of the same she could not avoid the consequences of the defendant's negligence; that she was impliedly invited to enter said store by said defendant for the purpose of purchasing some merchandise owned by the said defendant; that she was impliedly invited to walk down the aisle to look at the merchandise displayed on the counters with a view of buying the same; that it was the duty of the said defendant, while she was walking down the aisle looking at said merchandise, to keep said passageways, or corridors, free from any obstructions; that on May 19, 1942, she went into said store for the purpose of purchasing some article of merchandise, and while coming out of the store her foot struck the bottom part of said scales, throwing her violently to the floor, and severely injuring her [the injuries were here described]; that in removing said scales from the said wall to a place where the customers of said store usually walked, caused and produced her injuries; that she did not know that the said scales had been removed from said wall to the place where she was injured until after she was injured; and that no one had given her any notice about the scales being moved."
The petition alleged that the plaintiff was in the defendant's store as an invitee, and that "the scales at the time [she] was injured were in the aisleway or passageway over which customers passed going in and out of the store. The upright part of the scales, which is the back part, was pointing toward the corner of the store where the front wall and the east wall come together, and the platform part of the scales was in the passageway over which the customers went in and out of the store." This corner of the store, according to the petition, was to the right of the aisle which the plaintiff was using as she was leaving the store. Construing the petition on general demurrer most strongly against the pleader, the scales were entirely within the aisleway, but the weighing or platform part extended further into the aisle than the upright part into which the money was deposited. There is no express allegation in the petition that the scales, or any part thereof, were concealed from the plaintiff's view; and when we construe the pleading most strongly against the pleader, we think that the petition alleged that the scales were in full view of the plaintiff if she had looked ahead in the direction in which she was going; that at the time her foot struck the bottom of the scales, she was looking at some merchandise displayed on the counter near her, and when looking at such merchandise, the scales were not in her line of vision, and she did not see them. Thus under the allegations of the petition, construed most strongly against the plaintiff, we do not think that the question of visibility was involved.
It should be borne in mind that the merchant, the occupier of the building, is not an insurer. As has been said in one case, "What the law requires is not warranty of the safety of everybody from everything, but such diligence toward making the store safe as a good business man is in such matters accustomed to use."McCrory Stores Corporation v. Ahern, 65 Ga. App. 334, 340
(15 S.E.2d 797). The degree of diligence required here "is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances." Code, § 105-201. The question here is, could the mischief have reasonably been foreseen? The rule must be applied with reference to the situation of the property and its arrangement for the conduct of the business. A merchant must have a place to locate his goods, counters, and appliances with which to conduct his business, and when such appliances are not placed so as to threaten danger to those visiting the store,
and are in full sight, and within the observation of every one, the merchant is not liable for accidents which result from carelessness and inattention to the surroundings. We do not think that the allegations of the petition show that the defendant neglected any duty it owed to the plaintiff. The plaintiff was not exposed to any unreasonable and concealed danger. There was nothing in the manner in which the scales were placed and kept in the aisle from which such a result could be reasonably anticipated. The scales were described as follows: "The platform of the scales . . is about thirteen inches from front to the back and about eleven and one-half inches wide. The length of the scales from front to back is about twenty-three inches. The upright piece at the back . . is about six inches wide and about four and a half feet high. The distance from the floor of the building to the bottom of the platform of the scales is about one inch. The scales are made of iron or steel and weigh about one hundred pounds." There was nothing unusual in the placing of such a set of scales of the size and dimensions in question in the aisle of the defendant's store, to be used in connection with the defendant's business. Such a practice is in common use for stores of the same kind as the defendant's, as well as for various other kinds of stores. The scales were obvious to everyone using the aisle. The plaintiff had no right to complain of the absence of accommodation of an unusual kind. To paraphrase the language used in the case of National Bellas-Hess Co. v. Patrick, 49 Ga. App. 280,283 (175 S.E. 255): If she did not look where she was going, and the scales were clearly visible, and could easily have been seen by anyone who did look, she could not recover. ThomsonSpot Welder Co. v. Fairbanks Co., 37 Ga. App. 774
(141 S.E. 923); Williamson v. Kidd, 65 Ga. App. 285 (15 S.E.2d 801); Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72
(190 S.E. 354), citing Executive Committee of the BaptistConvention v. Wardlaw, 180 Ga. 148 (178 S.E. 55), and the dissenting opinion in Wardlaw v. Executive Committee of theBaptist Convention, 47 Ga. App. 595 (170 S.E. 830); Hart v.
Grennell, 122 N.Y. 371 (25 N.E. 354); Larkin v. O'Neil,119 N. Y. 221 (23 N.E. 563).
The cases cited in the brief of the plaintiff in error are distinguishable by their particular facts from the instant case. The judge properly sustained the general demurrer and dismissed the petition.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.