Avary v. Anderson

120 S.E. 683, 31 Ga. App. 402, 1923 Ga. App. LEXIS 963

• Court: Court of Appeals of Georgia
• Decided: December 10, 1923
• Docket: 14383
• Status: Published

Opinion

Bell, J.

(After stating the foregoing facts.)

It appears from the petition that the plaintiff could see and did see the general condition of the bathroom, and was thereby tvarned. She only alleges that she did not see the greasy sub¡stance at the particular spot where she fell. The inference is demanded that she saw that a “greasy substance” was on the general floor, and that the “floor” was “thereby rendered unsafe.” See italics in the statement of facts. To allege that she did not see and had no means of seeing or of knowing that the greasy substance was at the particular place is not equivalent to an averment that it was in some way obscured. She does not allege it was dark. It does not appear that the plaintiff was suffering from any defect of vision. It is therefore presumed that her vision was normal, and thus she did have the means of seeing and knowing of the condition which brought about her injury. Construing the petition most strongly against her, as must be done on demurrer, it appears that the grease upon the floor was patent and obvious, and that even though the defendant may have been negligent in allowing it to be there, the plaintiff could have avoided the consequences of that negligence by the exercise of ordinary care; and this is so notwithstanding the general averment of proper care on her part. The specific facts pleaded must prevail over the mere conclusions of the pleader. The general demurrer was properly sustained. Hendricks v. Jones, 28 Ga. App. 335 (111 S. E. 81); Lebby v. Atlanta Realty Corporation, 25 Ga. App. 369 (103 S. E. 433) (in which Judge Stephens dissented); Day v. Graybill, 24 Ga. App. 524 (101 S. E. 759); Biederman v. Montezuma Mfg. Co., 29 Ga. App. 589 (116 S. E. 225); Bolden v. Central of Ga. Ry Co., 130 Ga. 456 (60 S. E. 1047); Banks v. Schofield’s Sons Co., 126 Ga. 667 (55 S. E. 939); Civil Code (1910), § 4426.

Furthermore, it may be noticed that the plaintiff does not allege that the greasy spot caused her to fall, but merely that she stepped on it, slipped, and fell. But in view of what we have said above, it is unnecessary to decide whether the petition was defective for this reason.

Judgment affirmed.

Jenkins, P. J., concurs. Stephens, J., dissents.