The depositions of the plaintiff, the only evidence on the hearing on the motion for summary judgment by the defendants, showed no negligence on the part of either defendant, and that, if there ware negligence on the part of either of the defendants, the plaintiff had knowledge of such negligence and her injury was due to her own want of ordinary care. See dissenting opinion of Judge Jenkins in Wardlaw v. Executive Comm. Baptist Convention, 47 Ga. App. 595, 596 (170 SE 830), reversed in 180 Ga. 148 (178 SE 155); Vaissiere v. Pound Hotel Co., 184 Ga. 72 (190 SE 354). The case of Boyd v. Gardner, 62 Ga. App. 662 (9 SE2d 202) is clearly distinguishable on its facts. It follows that the trial court did not err in granting the motion for summary judgment of each defendant.
Mrs. Sara Turner Houser brought an action against Walter Ballard Optical Company, a tenant of, and Medical Building Company, Inc., the owner of, a building, for damages for alleged injuries received in a fall. The material portions of the petition contain the following allegations: "The said Walter Ballard Optical Company was at all times pertinent to this petition a tenant of Medical Building Company, Inc., the owner and lessor of the building known as the Medical Arts Building, and located at 384 Peachtree Street, N. E., Atlanta, Fulton County, Georgia. Walter Ballard Optical Company maintains an office in said building for the purpose of filling prescriptions for persons who are in need of glasses, for other visual aids and for the purpose of repairing and changing glasses. On October 27, 1960, your petitioner, who was at said time 83 years of age, entered the office of Walter Ballard Optical Company, which is located in the Medical Arts Building, for the purpose of having her glasses changed. Your petitioner was an invitee of Walter Ballard Optical Company during normal business hours and, after having completed her business with said Walter Ballard Optical Company early in the afternoon, she proceeded to leave said premises by the way of a door which entered onto the main inside hallway of the Medical Arts Building. In order to make exit from said premises of Walter Ballard Optical Company into the hallway of the Medical Arts Building, it is necessary to open a heavy, inward-swinging door, step onto a ledge inside the doorway, and then step down a distance of about nine inches onto the marble floor of said hallway. Petitioner shows that the said step-down was approximately nine inches in height and that the coloring of the floor level in Walter Ballard Optical Company, the ledge above referred to, and the floor of said hallway in the Medical Arts Building was contrasting but deceiving and that your petitioner in the exercise of ordinary care was unable to judge the nine inch step-down. When your petitioner attempted to step from one floor level to the other, after opening the said heavy door, and while stepping down onto the marble floor of said hallway, she fell and sustained serious permanent personal injuries, including a broken hip. Your petitioner shows that she was attempting to leave said Optical Company and enter the Medical Arts Building for the purpose of going to see her doctor, Dr. Robert L. Whipple, who was a tenant in said Medical Arts Building, and was at all times pertinent to this petition an invitee of both defendants. Your petitioner shows that she was not possessed of good eyesight at the time of said fall and that this, combined with the height of the step and the coloring aforesaid, prevented her from making a safe stepdown. Petitioner shows that at all times mentioned herein the said premises heretofore described were unsafe and dangerous, especially with respect to elderly people with poor eyesight, sick, infirm, feeble, aged, crippled and partially blind persons, whose presence both defendants should have anticipated in the exercise of ordinary care, said defendants being engaged in businesses concerned with the health and welfare of their invitees. Your petitioner shows that defendants herein, by and through their agents, failed to warn your petitioner of the dangerous and unsafe condition of said change in floor level as hereinabove set out and further failed to provide any rails, hand-holds or other means by which she might have steadied herself while descending said step-down as above alleged. Defendants herein, by and through their agents, failed to anticipate that your petitioner might fall and injure herself at the place hereinabove described and under the conditions hereinabove described. Defendants herein, by and through their agents, failed to provide a person to assist your petitioner in opening said heavy door and making her step from one floor level to the other. Defendants herein, by and through their agents, held out to your petitioner impliedly that said step from said Optical Company onto the floor of said Medical Arts Building was a reasonably safe means of egress. Petitioner alleges that the construction and maintenance of said step-down as described hereinabove was dangerous and unsafe and was a menace. The sole proximate cause of the in juries as sustained by your petitioner as set out herein was the joint and several negligence of the defendants themselves and by and through their agents, servants and employees in the following particulars: (a) In failing to warn your petitioner of the condition and insufficiency heretofore described; (b) In holding out to the petitioner that the condition heretofore described was
a safe way by which to make egress from the Optical Company onto the hallway of the Medical Arts Building; (c) In failing to provide a safe method or way of egress to your petitioner, who was lawfully an invitee upon the premises of defendants at the time and place heretofore alleged; (d) In failing to anticipate that your petitioner might be injured by having to open a heavy door and make the step-down described hereinabove; (e) In failing to assist your petitioner in making her attempted exit as heretofore described; (f) In failing to provide rails or hand-holds for your petitioner's use; (g) In failing to warn your petitioner of the nine inch step-down either orally or by a printed sign or by other means; (h) In maintaining and constructing a dangerous and unsafe step-down as alleged in this petition which constituted a menace to those who used it; (i) In furnishing to your petitioner as a means of egress from said Optical Company to said Medical Arts Building a step-down which was unsafe and dangerous by virtue of the facts hereinabove set out." She alleges injuries and damages in the amount of $50,000. Demurrers, both general and special, were filed by both defendants to the petition of plaintiff, and answers were filed denying material allegations of the petition. Upon motion for summary judgment, the deposition of the plaintiff was the only evidence presented in which the plaintiff testified in material part as follows: "Q. How many times do you suppose you had been in to Ballard's in the Medical Arts Building before the day you fell? A. I can't say because I have no idea. I went a number of times. Not frequently, but I have been in there before, I'll say two or three times, before I fell, but I didn't like that stepdown. When I was well, I was very active, very, and so there was no need of me falling, but there was a drop there and I stepped back too far. Q. You had stepped down that same step before and you didn't like the step, is that correct? A. No. I didn't like it and I have stepped down that step before a number of times. As I came out, I decided I wanted to tell him that my daughter was in the city and was coming to that building and a little message for her I left. In order to do that I had to step inside the door and as I drew the door behind me to close it to step down, I just misjudged the distance and that was the fall, fall on this right side. Q. In other words, you went into Ballard's that day, that is, the accident day--through the lobby entrance--which was the same entrance where the accident later occurred? A. Yes, I don't think I ever went in the other entrance before. Q. All I wanted to know was how it happened. As I understand it, had you gone out once and then come back to tell him something else? A. I didn't go out entirely. I just opened the door and stepped out. Then I opened the door again to tell the clerk, give him the message about my daughter. Q. The second time that you opened the door upon leaving, that second time were both of your feet upon the same level as Ballard's or was one of them down on the lobby level? A. On the level of the store. Q. Both were on the level of the store? A. Both. Q. And then--A. When I went out the first time, I don't remember that I had pat my foot down. I don't think so. Then I just pushed the door open and gave him the message that I wanted to give my daughter, and in stepping back I just pulled the door to behind me with this right arm. Q. Yes, ma'am. A. And I fell on the right side. I would have been--it would have killed me if my head had struck, but fortunately I didn't strike my head. Q. You backed out, is that correct? A. Well, somewhat, not entirely, no. Q. Well, tell me in what respect that is not correct. A. Well, don't you know when you back back out of a door--Q. Yes, ma'am. A. I don't know how to tell that, but it's when I stepped back that I fell, the only step I took after I opened the door to go back. Q. You were not looking at the lobby floor at the time that you took the step--that resulted in your injury? A. No. I was accustomed to going in there. I had been in before and I knew the step-down was there."