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DAVIS v. HARRELL CONCRETE PRODUCTS, INC.
39348.
Action for damages. Colquitt City Court. Before Judge Cranford.
NICHOLS, Presiding Judge.
The petition set forth a cause of action against the defendant corporation, and did not show that the plaintiff's injury resulted from a failure to exercise ordinary care for his own safety.
Ramsey Lee Davis sued Harrell Concrete Products, Inc., to recover for injury sustained while an invitee upon premises owned and maintained by the defendant corporation. The petition, omitting formal parts, and the injuries and damages allegedly sustained by the plaintiff, alleged the following: "2. Petitioner shows that the said defendant now conducts, and did at the time hereinafter mentioned conduct and carry on, a business at 411 Fourth Ave., S. E., in the City of Moultrie, Georgia, of keeping for sale building materials, lumber, paints, mortar mix and ready-mixed concrete. 3. The said defendant, at the time hereinafter mentioned, owned and maintained a cement house, where defendant stored its stock of cement in bags. 4. Petitioner shows that in the course of trading with defendant, the defendant, through its employees, had instructed petitioner, when petitioner needed a bag or two of cement, to go by the aforesaid cement house and pick up such small quantities. 5. That on October 13, 1958, following defendant's said instructions, petitioner went to the aforesaid cement house to get a bag of cement. When petitioner stooped over to pick up a bag of cement from the floor a sack of cement fell from the top of a nearby stack hitting petitioner on the back. This blow drove petitioner into a stack of cement in front of petitioner causing the entire stack of seventeen (17) bags to fall and ten (10) bags out of the stack fell on your petitioner. 6. That the said defendant, not regarding its duty, did not use due and proper care to provide and maintain safe and suitable premises for its customers; that the cement in the aforesaid cement house was stacked in irregular and unbalanced stacks seventeen bags high which were too high to be safe; that in order to stack the cement seventeen bags high the top bag had to be forced between the sixteenth bag and the overhead joist; that the ready-mixed cement machinery and several cement trucks, all with heavy vibrating machinery, was located immediately adjacent to the cement house. 7. That as a direct result of said defendant's want of ordinary care, as hereinbefore set forth, and without any fault or negligence on the part of petitioner, petitioner was thereby greatly bruised, broken and injured and damaged in his body and will remain so for the remainder of petitioner's life." By amendment the plaintiff alleged the names of the employees who instructed him to go by and pick up such small quantities of cement from the cement house. The defendant demurred to the petition, and the plaintiff now excepts to the judgment sustaining the defendant's general demurrer.
The petition, while nowhere alleging expressly that the stacking of the cement in irregular and unbalanced stacks, together with the vibration caused by the heavy machinery located immediately adjacent to the cement house, caused the bag of cement to fall from the top of a nearby stack, does allege the acts of negligence relied upon in paragraph 6 of the petition, and paragraph 7 alleges that, because of such want of ordinary care the plaintiff received the injuries complained of.
While on demurrer pleadings must be construed most strongly against the pleader, yet they must be accepted as true and, as against general demurrer, a general allegation of negligence is sufficient. See Hudgins v. Coca Cola Bottling Co., 122 Ga. 695 (1) (50 SE 974); Whitsett v. Hester-Bowman Enterprises, Inc., 94 Ga. App. 78, 83 (93 SE2d 788). The petition was sufficient to show a duty, a breach thereof, and an injury. Ellison v. Georgia R. Co., 87 Ga. 691 (13 SE 809).
The defendant contends, however, that the petition shows that the plaintiff failed to exercise ordinary care for his own safety and that an action is therefore barred by Code 105-603. Such contention is without merit, for, under the allegations of the petition, the danger, or defect in the premises, was not one that was so conspicuous as to be obvious to all who entered the building save those who were failing to exercise ordinary care for their own safety, for, while the plaintiff would have seen the bags of cement in the exercise of ordinary care for his own safety, the petition does not make it appear that in the exercise of ordinary care for his own safety he should have realized the danger connected therewith, to wit: that the vibrations caused by the heavy machinery located immediately adjacent thereto would cause the top bag of cement to fall. See, as to plaintiff's duty to exercise ordinary care for his own safety, Wynne v. Southern Bell Tel. &c. Co., 159 Ga. 623 (2) (126 SE 388); Glover v. City Council of Augusta, 83 Ga. App. 314 (63 SE2d 422), and citations. The petition was not subject to the defendant's general demurrer, and the judgment of the trial court sustaining such demurrer must be reversed.
Judgment reversed. Frankum and Jordan, JJ., concur.
Whelchel & Whelchel, Hoyt H. Whelchel, Jr., James C. Whelchel, contra.
George A. Horkan, Jr., William C. Peters, for plaintiff in error.
DECIDED APRIL 4, 1962 -- REHEARING DENIED APRIL 24, 1962.
Friday May 22 22:47 EDT


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