155 P.2d 138 | N.M. | 1945
Plaintiff-appellee Dominguez brought suit and, upon trial to jury, recovered from defendant-appellant judgment in the sum of $5,000 for personal injuries allegedly suffered when she stumbled over or at a step at the entrance to appellant's bus station at Santa Fe. The negligence charged against appellant was that of maintaining a step one and three-fourths inches in height at the immediate front door entrance to the station. Appellant denied the allegation of negligence and pleaded contributory negligence on the part of the appellee.
The appellee, a woman sixty-four years of age, weighing two hundred eighty-five pounds, went to appellant's bus station in Santa Fe for the purpose of taking a bus to Albuquerque. There was a small step some one and three-fourths inches in height at the entrance to the station and almost flush with the outside door jamb. As she went out of the station after purchasing her ticket, appellee stumbled on this step, or exit, injuring her ankle. She then got on a bus for Albuquerque. After arriving there she complained of her injury to one of the officials at the Albuquerque station, who sent her to the Lovelace Clinic where her injured ankle was treated and an X-ray taken. She suffered a great deal from the ankle thereafter, and was hospitalized for some weeks, incurring considerable expense. Appellee walked into the station over the same step that she allegedly stumbled over coming out, but she did not see the step either time. She was looking straight ahead, "following the crowd".
There are numerous assignments of error and these are argued under five points, as follows: (1) The court erred in admitting in evidence Plaintiff's Exhibit No. 3 and the testimony of the witness Dr. William Randolph Lovelace relative thereto; (2) there is not sufficient substantial evidence to sustain the verdict and judgment; (3) the court erred in giving instruction No. 12 to the jury; (4) the court erred in refusing appellant's requested instruction No. 2; (5) the court erred in overruling appellant's motion for a new trial.
It might be said that under the evidence much doubt could be entertained as to whether appellee was in fact injured by any accident at the step. She had been suffering for a long time from arthritis in the limb and ankle of which she complains. But, since the question of liability is to be resolved by the conclusion we reach under another assignment made and point urged, the question whether accidental injury was suffered need not be further noticed.
Under our view of the case we need consider only point 2, which goes to the question whether there be substantial evidence upon which to rest the verdict and judgment. Appellant's case must stand or fall upon the answer to the query whether *15 a jury may say that it is negligence, under the circumstances of this case, to maintain a step, or door sill, one and three-fourths inches high at the entrance to the station. That is to say, should not the court itself have resolved the question and held as a matter of law that no negligence was shown. We believe the question should have been so resolved; that it was not a jury question.
The alleged accident happened in broad daylight and there is no claim, or showing, that there was improper lighting, any foreign substance on or near the step, or other circumstance which could have been considered as increasing the hazard to appellee or others using the entrance, over and above the very nature of the structure itself. There is no showing that appellee could not have seen the step had she been looking where she was stepping upon leaving the station; or that the crowd of which she speaks as employing the door passage about this time actually obscured her vision or crowded her in the passage at the time, even if that would have been important.
We had much the same situation in Seal et al. v. Safeway Stores, Inc.,
"The drop in elevation of some 3 or 4 inches from the paved walk to the paved parking space, where plaintiff was walking at the time of the accident, cannot be said to present a hidden or concealed danger for any person using it in broad daylight especially, and keeping a reasonable watch as to where he is walking, and with no unreasonable distractions. Certainly plaintiff, upon entering or leaving a store of this character, and undertaking to walk through and upon the parking grounds, must take notice that such changes in elevations are not uncommon and are to be expected.
"Likewise she is not to be absolved from the exercise of reasonable watchfulness as to where she is placing her feet simply because she is carrying a large bundle of groceries which, would ordinarily, and without change of position of the bundle, or of her face, obscure her view of her feet."
Certainly there is presented here no less a question of nonnegligence as a matter of law than was before us in the Seal case. If it can be said that the maintenance of a step-down, or change in walk elevation, of three to four inches, under the circumstances of that case, would not present a case for the jury — a question whether or not it constituted negligence on the part of the one maintaining it — it certainly could *16 not be said that the circumstances of the case before us do.
Appellee weighed approximately two hundred eighty-five pounds at the time of the accident. The doorway in question was of the average size and, obviously, no one but appellee could have been using it at the time. This drop in elevation occurred immediately outside the door and probably within two or three inches of the outside of what might be called the door sill. In fact this higher elevation might be referred to as a door sill. No particular reason can be gathered from the record for the maintenance of this slight drop from the inside floor elevation. It might have been that it was maintained as it was for the purpose of affording drainage away from the station floor of rain water that might beat against the door from rain storms which frequently blow down from the North, for example.
A common carrier is required to exercise only reasonable and ordinary care in providing station facilities for the protection and accommodation of passengers using such stations, 13 C.J.S., Carriers, § 717, pp. 1333, 1334; and there is, of course, a corresponding duty resting upon passengers and others using such facilities to watch their step and otherwise exercise ordinary care. See Illinois Central R. Co. v. Sanderson,
Our attention is likewise called to the case of Ware v. Evangelical Baptist B. M. Society of Boston,
See also the case of Abrahams v. Zisman,
It is clear that appellee, immediately prior to the alleged accident, had notice that there was such a step for she had a few minutes before come into the station through the same door. She was bound to have employed the step upon entering, and the fact that she may not have seen it, might not have looked "as to where she is (was) placing her feet" as she should have (Seal v. Safeway Stores, Inc., supra), would not absolve her of the duty to take notice thereof. The ordinarily prudent person will be presumed to possess those qualities of attention and perception which are usually possessed by mankind in general. (Syl.) Blackwell v. J.J. Newberry Co., Mo. App.,
Appellee's argument that had this been a step-down of four to six inches it would have been a different matter, does not impress us. That is to concede that one using the entrance must take notice that there might be a change in elevation at the door, and must, at his peril, look where he is stepping. It is obvious that had there been such a step here, under the circumstances, appellee could as well have suffered the injury complained of. She was not looking where she was walking but "looking straight ahead, following the crowd", she testifies. She did not look at the step, in fact, either in entering or leaving the station, although she used this doorway both in her entrance and exit.
If it is to be said that the maintenance of a step four to six inches in height would not be negligent, what about a step three and one-half inches in height? Or one of two and one-half inches?
Clearly, appellee would not have seen a step of any elevation under the circumstances, for she was not looking. And, there is no showing that in thus "following the crowd" she would have been unable to have seen the step had she looked; no showing that she was either crowded into or pushed out of the door, if that could have made a difference; and certainly no claim that any other person was using the door in conjunction with her, something quite unlikely, if not impossible, because of her considerable size. When it can be said that to maintain some certain height of elevation at the entrance would not be negligent, which we understand is conceded, we must say that under the circumstances of the case the maintenance of the one in question would not support such a finding.
It is a matter of common knowledge that in Santa Fe particularly, if not generally, sidewalk, and entrance, elevations to most places, private and public, are quite without uniformity. Some circumstances might be presented where a two or three inch change in elevation of an entrance step might present a hazard which would call for a determination by the fact finder of whether or not there be negligence in the maintenance thereof. But this is not such a case. Snodgrass v. Turner Tourist Hotels,
The case of Cates v. Evans et al., Mo. App.,
So-called expert testimony was introduced on behalf of appellee to show the maintenance of such a step to have been negligent because people generally are used to steps of about six inches in height, and that such is, ordinarily, the height of such construction. In other words, that it should be so constructed as to accommodate the accustomed stride of the average person. Such testimony cannot here be relied upon to establish liability. As was said in the case of Pastrick v. S.S. Kresge Co.,
In view of the conclusion we reach on the question argued under point 2, it becomes unnecessary to notice other assignments. The trial court should have sustained appellant's motion for an instructed verdict. For the reasons stated the judgment is reversed with direction to set aside the judgment heretofore given and entered and to enter judgment for appellant. And it is so ordered.
SADLER, C.J., and BRICE, J., concur.
BICKLEY and LUJAN, JJ., did not participate.