Smith v. Goss

ON REHEARING

HOLMES, Judge.

Appellant has charged on application for rehearing that we have not followed the “slip and fall” rules as stated in the case of Foster v. Kwik Chek Super Markets, Inc., 284 Ala. 348, 224 So.2d 895, and Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586. We do not concede the verity of this charge.

Under the evidence of this case, we have adhered to the rule common to all cases of this nature. This rule is stated in S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171, as follows:

“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] (267 Ala. 569, 103 So.2d 173)

For edification, we consider the testimony of witnesses as hereinafter related, to have sufficiently furnished the foundation for the jury to have imputed to defendants negligence in maintaining the premises of their business.

Such evidence coupled with evidence that the place of the fall was a part of the premises of defendants or that they or their agents, servants or employees had undertaken maintenance thereof, was a sufficient “scintilla” to prevent error in the refusal of the affirmative charge.

Richard Goss, a witness for appellee, in response to questions as to the condition of the area in which appellee fell, testified as follows (page 15 of the record) :

“Q Describe for the Jury, the condition; was it paved, or was it sidewalk, or what.

“A It was concrete.

“Q Did it have limbs, or pieces of stick, or other debris on it?

“A Yes, sir. It did.

“Q What, if anything, do you remember that it had on it?

“A I seen some cigarette butts and where some cokes had been spilled, and there was a sucker stick.

“Q Cigarette butts, where some coke had been spilled, and sucker sticks?

“A Yes, sir.”

On page 21 of the record, on cross-examination of the same witness, the following appears:

“Q I believe your testimony was that you saw some cigarette butts and sucker sticks and I believe that’s about all you saw; is that right?

“A There was some coke there. It wasn’t clean, the porch wasn’t.”

On page 25 of the record, during direct-examination, Nellie Jo Mitchell, a witness for appellee (plaintiff), testified as follows in describing the area where appellee fell:

“Q Describe the condition of it?

“A Well, it had match stems and looked like sucker sticks and coca cola was poured out there. It was a mess.

“Q Did Mrs. Goss fall?

“A Yeah, she slipped on one of those sticks.

“Q Did you see her fall?

“A I did.”

On page 26 of the record, during cross-examination of Mrs. Mitchell, the following testimony appears:

“Q When you got out of the car, you say you noticed that the area up there was dirty; is that right?

“A Yeah. It was.

“Q Describe exactly what you saw.

“A Well, I saw match sticks and sucker sticks was laying there, and it looked like coke or something was poured out on the concrete.”

On page 36 of the record, the following testimony from appellee appears:

"Q Do you remember what you stepped on there, going in that washeteria ?

“A It was a sucker stick.

“Q Can you describe to the Jury and the Court here the condition of the walkway or the cement there immediately going into the washerteria ?

“A It just needed sweeping.”

On page 42 of the record, during cross-examination of appellee, the following testimony is revealed:

“Q When you arrived there at the washeteria, did you see any of these things that go in a sucker; that little white thing that you find, in the end of the sucker that children eat?

“A Yeah; there were several of them..

“Q How many, in your judgment, Mrs. Goss?

“A I didn’t get out and count them. I know I stepped on one and it scooted my foot right out from under me.

“Q Did you see it before you stepped on it?

“A No.

“Q You saw several others?

“A After I was laying down there in. them.”

We are aware that the object causing the fall was not before the court, nor was its specific condition. We recognize that the appearance of the matter slipped upon has been determined in other cases to furnish the basis for the imputing of negligence in failure to remove or inspect. Foodtown Stores, Inc. v. Patterson, supra. In the instant case, the littered, dirty and unswept condition of the area itself, is evidence from which negligence of maintenance could be imputed by the jury. Thus the same principle of imputation of negligence from the evidence is present in this case as in other “slip and fall” cases cited "by appellant. We have in no fashion departed therefrom.

This court in this case, as in all ■cases of appeal from the refusal of 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 inferences possible to be drawn therefrom, was sufficient for the •consideration of the jury.

Application for rehearing overruled and opinion extended.

WRIGHT, P. J., and BRADLEY, J., concur.