Supreme Instruments Corp. v. Lehr ( 1940 )

Instruction No. 4, granted at the request of the plaintiff, and assigned as error, reads as follows: "The Court instructs the Jury that it is admitted in this case that the plaintiff was working for the defendant as its employee on the 17th day of June, 1938, and that the defendant maintained at that time a rest room for the convenience of its employees as an incident of their work; and you are instructed that it was the defendant's duty as plaintiff's employer to exercise ordinary care to keep and maintain the steps at the entrance to the said rest room reasonably safe, and if you believe from the evidence that the defendant did not exercise reasonable care in keeping the said steps entering the said rest room reasonably safe and that the defendant negligently and carelessly maintained said steps in a dangerous condition by allowing them to remain so narrow or by having one step so high above the other as to be likely to cause injury and that by reason of such failure, if any, to maintain proper steps at the entrance of said rest room, said steps and entrance were rendered dangerous and unsafe for use by said employees and if you further believe from the evidence that on the 17th day of June, 1938, the plaintiff, while exercising reasonable care and while leaving the said rest room as incidental of her work as the employee of the defendant and that on account of such dangerous condition of said steps, if any, the plaintiff fell over the said steps and was injured thereby, and if you further believe from the evidence that said condition of said steps proximately contributed to her injury, then you will find for the plaintiff."

It is thus seen that the jury was allowed to return a verdict upon the issue of the condition of the steps, and so far as we may know the verdict was rendered upon that single issue. Therefore, since it was error to give that instruction, our duty is to reverse for that error alone, even if there were no other.

In the first place, the facts about the condition of the steps are absolutely undisputed. The steps themselves, admittedly in the same condition as on the day of the accident, were brought before the court and jury and have been sent to this Court for examination on appeal. The facts about the steps being thus undisputed, there was nothing else in respect to the facts about them which the jury could apply except that knowledge which is common to the average man and springs from the ordinary relations and experiences of life. And, while in their adjudications the jury may use and apply their own knowledge and observations as regards such ordinary experiences and relations, we expressly held in Harris v. Pounds, 185 Miss. 688, 694, 187 So. 891, 893, with the support of the most eminent authorities, that the province of the jury "in respect to the knowledge of facts which they may thus judicially notice and act upon, . . . is no broader than that of the judge on the bench, who has the power and duty of supervision and review over jury verdicts."

Inasmuch, then, as all the facts respecting the condition of the steps were undisputed and every feature of common knowledge or common experience which the jury could apply belonged also to the judge, what was there to submit to the jury as regards the condition of the steps, except to allow them to alter or amend the law of the land under the guise of a finding of facts? We have repeatedly said, as for instance in Dow v. Town of D'Lo,169 Miss. 240, 247, 152 So. 474, 475, that "it is not permissible, by the device and under the guise of a finding of facts by a jury, that the law of the land shall be altered or amended."

When the facts are undisputed, nothing remains except to apply the settled law of the land to those facts; and this is the constitutional duty of the trial judge, and he has no more right to abdicate that duty in favor of the jury than he would to commit it to some bystander. And when the law of the land is applied it is (1) that an employer is not an insurer; (2) that he is not required to furnish a perfect appliance or place, he is not required to furnish the best or the safest, or in all conditions or places to comply with ideal standards; but (3) his duty is to use reasonable care, the purpose and place considered, to furnish a reasonably safe appliance or place, and (4) we have repeatedly held that where a pedestrian is concerned, which is the principle here, that the obligation is fulfilled when a place is furnished which is reasonably safe for the use of persons who in such use exercise reasonable care for their own safety.

The complaint about the steps is that to reach the floor of the toilet from the floor of the corridor, a height of 18 inches, only one step was used with the respective risers divided into approximately 8 1/2 inches and 9 1/2 inches and that the tread of this step was 10 7/16 inches in width. It is the contention, as it is to be assumed, that there should have been two steps with risers of 6 inches each and the tread of the two steps should have been not less than 11 inches. Such a construction would have projected the foot of these steps more than 12 inches farther out into this narrow corridor, and if somebody in traversing the corridor had stumbled over the foot of the steps, the complaint would have been heard that the employer had negligently projected the steps too far out into the corridor.

There is not a syllable of substantial testimony that the distance of 9 1/2 inches from the floor of the toilet room to the step had any causal connection with the accident, that this distance rather than say 7 inches had anything to do with the catching of the shoe heel on the edge of the step. To say that there was any causal connection upon the stated feature of the riser is based upon pure assumption, an arbitrary assumption, which is never legitimately sufficient to support a verdict. The complaint must be referred, therefore, to the width of the tread, which, as stated, was 10 7/16 inches.

The difference between this width and the ideal standard of 11 inches, spoken of in the controlling opinion, is 9/16 of an inch. Can it be said, save by another arbitrary assumption, that had the tread been 11 inches wide instead of 10 7/16 inches the accident would probably not have happened? If we were permitted under the law to deal with possibilities in such a situation, an affirmative answer might be returned to the question stated, but not when the tangible probabilities are considered; and this is what we are to consider under the law, as we have over and over declared. And thus the case gets down to this: That because the tread was a fraction of an inch less than that said to be an ideal standard for stairways generally, then there is liability, which is to say that unless such a step is the safest and best according to the ideal standard for steps generally, the employer was negligent, and, moreover, that his said negligence may be assumed to be the proximate cause of the accident; and this, as already mentioned, is not the law in this state.

Judge McGEHEE has spoken of the fact that it is the common knowledge of all who have ever ventured beyond the environs of their own door sills that steps of the size and character here before us are found everywhere, including the Capitol building of the state. The steps leading to the galleries of both the Senate and the House of Representatives have treads measuring exactly 10 7/16 inches, which, as stated, is the measurement of the tread in the steps involved in this case, and at one place in those galleries the steps have a tread of only 9 1/2 inches; and the top step in the first flight of the broad approach at the front of the Capitol building, over which a million persons have passed, has a tread of 9 1/2 inches. The top and the bottom tread in the auxiliary stairway leading from the ground floor to the Supreme courtroom, where we hold our sessions, measure 10 7/16 inches, the same as the tread which is arbitrarily condemned in this case. Our Capitol building was designed by and built under one of the country's greatest architects, and under the eyes daily of a commission from among the state's most distinguished and most prudent citizens. These stairs have been for a generation used by thousands of the people of the state and other states, and yet we sit here and permit it to be said by a trial court that when an employer uses steps with a tread of that precise width as an approach to an humble toilet room, he is guilty of actionable negligence.

Three of the four large modern hotels in the capital city have stairways leading from the main floor to the men's toilet rooms in the basement. The treads of these three stairways are 10 7/16 inches wide. The largest and most recently constructed general office building in the city has a similar stairway and its treads are 9 1/2 inches.

With the affirmance of this judgment what has been done here is to make the employer an insurer, to hold him to the highest standard, rather than the standards which the law has pronounced — there has been sanctioned the taking of a large sum from one person and the transfer of it to another, not by the law of the land, but by the device and under the guise of a verdict by a jury whereby the law of the land has been altered or amended.

This dissent has been written, not because I supposed it could add anything to the strength or cogency of the dissent by Judge McGEHEE, but because it was my desire to confine my discussion to the steps, since, if properly decided, this alone would result in a reversal.