Opelika Montgomery Fair Co. v. Wright , 36 Ala. App. 1 ( 1950 )

On Rehearing.

In his brief in support of his application for rehearing appellant’s counsel urges that the assertion in the complaint “that is, with slippery treads thereon and without a hand rail or post at the lower step or steps thereof” is merely descriptive of the dangerous condition averred, and is not in itself the act of negligence alleged; that such conjunctive averment was merely further descriptive of the conditions at the time and place, which taken together rendered the stairway dangerous.

We do not agree with appellant’s contention, but adhere to our former- view that the verbiage of the count now under consideration, by the quo modo laid, specified in the conjunctive the particular acts constituting the negligence relied on, and since, in our opinion one of these acts did not in itself suggest or.show negligence, the demurrer pointing out this defect was improperly overruled. This positive averment of the quo modo cannot, in our opinion, be properly construed merely as descriptive of the conditions at the time and place, but must be considered as a conjunctive averment of every element of negligence relied on.

It is in this that the present count differs from the pleadings considered in the cases relied on by appellant.

Be that as it may, we are of the-further opinion that regardless of our conclusions on the pleading a-spect, this cause is due to be reversed because of the insufficiency of the evidence tending to establish negligence on the part of the defendant, either as to the absence of the hand rail, or as to the improper maintenance of slippery treads on the stairway.

We feel that what we have previously written in regard to the evidence relative to the hand rail, and the legal principles applicable thereto is sufficient to illustrate our views as to this feature of the case. •

In respect to the condition of the treads of the stair, Mrs. Cecil Wright, daughter-in-law of the plaintiff, testified that the treads of the steps were “of some kind of slick material, some kind of granite or marble like substance,” and was slippery.

On re-cross examination Mrs. Cecil Wright testified as follow:

“Q. You have walked on marble floors or steps, haven’t you? A. Yes.

“Q. And marble itself is a slick material? A. Yes, sir.

“Q. And these steps were in the condition which you have found marble floors on other occasions’? A. Yes, sir.

“Q. No different this time than you have found marble on other occasions? A. Yes, sir.

“Q. And your saying they are slick is that all marble as you walked along had a slippery feeling? A. That that I have seen.

“Q. And this was in the same condition .you have found marble on other occasions to be? A. Yes, sir.”

Mrs. R. S. Orr, Jr., a witness for the plaintiff testified, as to the steps, that: “They are a very hard material or -marble substance. I don’t know what it is, but it is very hard.”

On cross examination Mrs. Orr testified as follows as to this feature:

“Q. They just looked like they had every other time you had been in the store ? A. Yes, I would think so.

“Q. And you are saying slick because the material which the steps are made of is hard substance which — ' A. Marble.

“Q. And that is what you are telling the jury, it is a slick step, is the fact that it has marble composition? A. Yes, as far as I know.”

The plaintiff testified that the step was mighty slick, and seemed to be marble.

She further testified that at the time she was injured she was wearing oxford type shoes which had what is known as a military heel, which is about an inch and a half high.

For the defense Mr. Burkhardt, the architect, testified as to the design and construction of the steps, that they were, “Reinforced concrete stairs with terrazzo topping on the cement, and marble chips which is ground to a smooth surface, and in the case of the two stairs, corporundum which is put in so as to make it not slippery, and the type of stair is known as a curved start step, usually when space is available for stairs as is in that case.”

He further testified that the risers on the s'teps were seven inches high, and the treads eleven inches wide. The corporundum is mixed through the terrazzo, and if the steps wear down, the corporundum is still there.

These steps were, in Mr: Burkhardt’s judgment, of the usual type and construction found in commercial and public buildings.

On cross examination Mr. Burkhardt testified that he specified that corporundum to be mixed in the terrazzo, that he did not see the steps poured, and that the percentage of corporundtim to be added is usually left to the man who pours the steps.

On redirect examination this witness testified that he has seen the steps since they were constructed and was certain that they were constructed as he had designed them, and as he specified.

Mrs. Mayo Gunter, an employee of - the defendant below, testified that after seeing' Mrs. Wright fall, and rendering first aid toller, she inspected the steps and found them: to be in perfect condition; that she had' walked up and down the steps several times on the day of the plaintiff’s fall and the condition of the steps was no different at that time than at any other time she had worked for defendant, which was some two and a half years.

C. A. Wray, defendant’s manager, testified he had been so employed for two and a half years. He inspected the steps shortly after plaintiff’s fall and found them to be in the same condition as on other occasions.

He further testified that the steps are swept, and about every two weeks washed with soap and water, and no other preparation was ever used upon them.

There is no evidence presented by either side from which it could be reasonably inferred that there was any foreign substance such as wax or soap upon the steps. The negligence, if any, of the defendant must flow from the slipperiness of the steps inherent in their construction out of the terrazzo, a marble like substance. No evidence was offered by the plaintiff tending to contradict Mr. Burkhardt’s testimony that these steps were such ás are commonly used in public and commercial buildings, were constructed according to his specifications, and based on his professional experience and training were of a type considered by him to be safe.

Was the defendant therefore guilty of negligence in installing such steps for use by the public?

In Chapman v. Clothier, 274 Pa. 394, 118 A. 356, 357, the Pennsylvania Court, considering a similar question wrote: “The steps were of American marble, properly constructed and in perfect condition, except slightly worn, and to hold defendants liable for this unfortunate accident would practically be to render the storekeeper an .insurer of the safety of his customers, which he is not.”

In Stein v. Buckingham Realty Co., Mo. App., 60 S.W.2d 712, 713, the plaintiff while a guest in a hotel operated by the defendant fell on a -stairway. The following facts and observations as to governing legal principles appear in the opinion:

“The stairway is of marble, with steps eight inches in width, and first leads down to the west to a point midway between the two floors, where it makes a circular turn to the right and reverses itself, facing to the east as it comes down into the lobby. At the turn the stairs are fan-shaped, narrowing down at the point of the turn to a width of only three .inches. Alongside the right of the stairway, as it leads down to the turn is •a railing or bannister, which ends at the 'point of the turn, where a pillar or post is stationed. At the left side of the stairway there is nothing but the blank wall.

“Plaintiff had never used the stairway before; and as she started down, observing that the stairs were slippery, she walked along the right side, and held on to the railing until she reached the turn, where the railing ended. At that point, instead of stepping over to the left where the stairs retained their normal width, plaintiff attempted to continue on around the pillar at the right side of the stairway, and in using the narrow steps her foot slipped, causing her to fall forward and sustain the injuries for which she has sued.

jjí % ijs j{;

“Now here, plaintiff’s evidence was of one accord that there was no defect in the stairway, and no foreign substance upon the stairs; but rather she predicated her right to a recovery upon the bare fact that the stairs were slick and slippery and not safe for persons using them because of their construction out of marble. However, we cannot shut our eyes to the fact, which every one knows, that stairways in hotels and public buildings, especially of the older types, are frequently made of marble; that, where the stairways turn, the stairs themselves are necessarily of fan-shaped con'struction; and that stairways so constructed * * * are yet not inherently dangerous, but have been found proper to answer the purpose for which they are designed in the general use to which they have been put throughout the length and breadth of the land. Under such circumstances no jury may be permitted to denominate the mere maintenance of a marble stairway as an act of negligence upon which to base a liability for damages to one falling upon it with knowledge of its construction.”

Considering a question similar to the one now under consideration, the Court of Appeals of Illinois for the First District, in Dire v. Balaban & Katz, Inc., 241 Ill.App. 199, made the following observation: “No expert testimony was introduced to show that the stairway was improperly or negligently constructed, and the testimony of the plaintiff and her husband related to the construction of the stairway, fairly and reasonably construed, does not tend to prove that the stairway was improperly or negligently constructed. The only evidence that possibly could be considered as relevant to the question of negligent construction is ■that the steps consisted of ‘slippery marble;’ that the railing extended only to the second step below the landing; that the landing at the pillar was about six inches in width; that the overhanging part of the steps curved down. In our view, this evidence in itself alone is insufficient to show an improper or negligent construction of the stairway. We think it may be said, as a matter of law, that this evidence reasonably and fairly construed does not tend to establish any obvious or apparent danger in the construction of the stairway.”

In Norwood Clinic v. Spann, 240 Ala. 427, 199 So. 840, 842, the facts showed that the plaintiff had been crippled since infancy by infantile paralysis, but was able to walk with care and the use of a cane. He sustained injuries while walking up a ramp into the clinic. Some evidence tended to show that the ramp had become slick from usage, and that it did not comply in some respects with the city building regulations. In holding that the case was properly submitted to the jury the court observed that: “It was the duty of the clinic to anticipate the use of this walkway by those in any manner of affliction, and use due care for them”, and further observed that: “The jury should have more latitude in determining its reasonable safety for use of those who are infirm than if the place were designed to accommodate people of average physical condition ” (Italics ours.)

From the evidence submitted in this cause it appears that the only inferences to be drawn are that the stairs in-question were of a type commonly used in* commercial buildings, and considered reasonably safe for people of average physical condition. There is no intimation in the evidence that the defendant was negligent in' the maintenance of the steps in so far as altering their condition by placing or permitting foreign substances thereon. The defendant, it would appear has met the. degree of care required of it under the law. No presumption of negligence arises because the defendant was injured on the premises. The evidence being insufficient to establish ■ negligence either as to the maintenance of the hand rail or as to the steps themselves, the defendant below was entitled to have given its request for the general affirmative charge with hypothesis. Its refusal by the lower court constituted error.

Application denied.