Opinion
42810.
ARGUED MAY 4, 1967.
DECIDED MAY 17, 1967. REHEARING DENIED JUNE 6, 1967.
Action for damages. Fulton Superior Court. Before Judge McKenzie.
Henritze, Baker Bailey, Walter M. Henritze, Jr., Smith, Cohen, Ringel, Kohler, Martin Lowe, Ralph H. Witt, for appellant.
Swift, Currie, McGhee Hiers, Warner S. Currie, John Paul Jones, for appellee.
The trial court correctly sustained a general demurrer to the petition where the defendant's negligence was not the proximate cause of the plaintiff's injury.
ARGUED MAY 4, 1967 — DECIDED MAY 17, 1967 — REHEARING DENIED JUNE 6, 1967 — CERT. APPLIED FOR.
Plaintiff Elizabeth Crankshaw seeks damages against Piedmont Driving Club, Inc. alleging that on January 15, 1966, she in company with R. M. Harris and Miss Arlene Harris patronized the dining room of the defendant; that Miss Harris ordered shrimp and began eating same at which time she noticed a peculiar odor emanating from the shrimp dish causing her to feel nauseated; that Miss Harris excused herself and proceeded toward the rest room; shortly thereafter plaintiff proceeded toward the rest room to give aid and comfort to Miss Harris and as plaintiff entered the rest room she saw Miss Harris leaning over one of the bowls; that "unbeknownest to plaintiff, Miss Harris had vomited just inside the entrance to the rest room" and that as she hurried toward her she "stepped into the vomit, and her feet flew out from under her," causing her to fall and break her hip. The petition alleged negligence of the defendant in selling unwholesome, deleterious food and in failing to clean up the floor of the rest room or to warn plaintiff of the condition of the floor.
The trial court sustained the defendant's general demurrer to the petition, from which judgment the plaintiff appeals.
Appellant in her brief properly abandons the allegation of negligence due to defendant's failure to clean the regurgitated substance from the floor since under the
facts alleged the defendant had no notice, actual or constructive, of its presence on the floor prior to plaintiff's fall. Appellant contends, however, that "the heart of the legal question presented" is whether or not the negligent serving of unwholesome food to Miss Harris was the proximate cause of her (appellant's) injury. Viewing the case from this posed question we conclude that the trial court was correct in sustaining the general demurrer.
"If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrongdoer." Code § 105-2008. Damages must flow from the "legal and natural result of the act done." Code § 105-2009. The question of proximate cause is one for a jury except in palpably clear and indisputable cases. We think the facts alleged in this petition bring it within the exception and subject it to be ruled upon as a matter of law. The court must assume this burden where a jury can draw but one reasonable conclusion if the facts alleged are proved, that conclusion being that the acts of the defendant were not the proximate cause of the injury. Stallings v. Ga. Power Co., 67 Ga. App. 435 ( 20 S.E.2d 776). In our opinion a jury could not reasonably conclude that the plaintiff's injury was proximately caused by the defendant's negligence in serving unwholesome food to another person.
Judgment affirmed. Deen and Quillian, JJ., concur.