Winn Dixie Montgomery, Inc. v. Brindley

ON REHEARING

PER CURIAM.

Appellant, in his application for rehearing and well reasoned brief in support thereof, contends in part that this court has departed from the holdings as announced in May-Bilt v. Deese, 281 Ala. 579, 206 So.2d 590, and Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586.

This court has attempted to follow the above mentioned cases and other authorities as noted in our opinion. However, the facts as presented by the record and as viewed by this court do not allow us to reverse the trial court for its refusal to give the affirmative charge.

The Supreme Court of Alabama stated in S. H. Kress & Co. v. Thompson, 267 Ala. 566, 569, 103 So.2d 171, 173:

“The rule is also well established that if there is evidence which tends to show that a foreign substance has been on the floor for a long while, it is proper for a jury to impute negligence to the defendant for not discovering and removing such foreign substance. Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So.2d 274; Rowe v. Alabama Power Co., 232 Ala. 257, 167 So. 324; .” [Emphasis added.]

This court in this case, as in all cases of appeal from the refusal of the trial court to give the affirmative charge requested by the defendant, was viewed by considering the evidence in its entirety in a light most favorable to the plaintiff. It was only after so doing that we concluded the evidence, with all reasonable inference possible to be drawn therefrom, was sufficient for the consideration of the jury.

We have examined the trial court’s denial of the affirmative charge with all presumption of correctness and found it not to be in error.

Application for rehearing overruled and opinion extended.