Lead Opinion
This suit wаs filed by appellee, Mrs. Kate Thompson, against appellant, S. H. Kress & Company, for personal injuries alleged to have been suffered by Mrs. Thompson when she slipped and fell in the appellant’s ' store located in Birmingham, Alabama.
In substance, the complaint alleged that the injuries of the аppellee were sustained from a fall which was proximately caused by the negligent maintenance of the floors in the store of the appellant. The judgment 'below was for the appellee, and from this judgment the appellant has perfected an appeal.
The sole question argued on this appeal is the refusal of the trial court to give the affirmative charge in favor of the appellant. It is argued that the appellee did not present a prima facie case, in that she did not introduce evidence of the appellant’s alleged negligence.
To determine if the court below committed reversible error in refusing to give the affirmative charge in favor of the appellant, all the evidence introduced in the case will have to be considered in its most favorable aspect for the plaintiff. F. W. Woolworth Co. v. Ney,
The evidence tended tо show that the appellee was proceeding from the rear toward the front of the store, upon a major ' aisle running the entire length of the store. ■She was'walking in a “normal” and “ordinary” manner. While proceeding down the 'aisle, she slipped and fell. There was testimony to the effect that the substаnce 'she slipped upon was “many times bigger” ■than a half-dollar, that it was “splattered” 'and “smeared,” and that it “didn’t appear to be candy. There was too much of it there.” The nature of this foreign substance was never specifically identified, though it was contended by the appellant that it was “spit-out candy.”
There was uncontroverted evidence introduced to the effect that the appellant had cleaned its floor only a few minutes before the appellee fell. In interrogatories propounded by the appellee, the appellant answered that they “had a full-timе porter who continuously inspects and cleans said first floor; he has no other duties. No time had elapsed since said porter inspected and cleaned said floor as he continuously inspected and cleaned said floor on said date.” The appellant further stated that they had frоm “ * * * four to five employees, including the supervisor, continuously inspect said floor including the passageway during store hours.” There was also evidence introduced which tended to show that there were fourteen clerks stationed behind the counters along the aisle. One of these clerks saw the aрpellee fall.
There was no evidence introduced by the appellee as to how long the foreign substance had been on the floor, nor was it shown that any of the agents or employees of the appellant knew it was on the floor. There was no dispute of the testimony of the aрpellant that the floor had been swept by the janitor shortly before the accident occurred.
The crucial question in the instant case is whether there was sufficient evidence introduced to show that the appellant was negligent in allowing the foreign substance to be or remain upon the floor. If there was sufficient evidence introduced to take the question to the jury, the decision below must be affirmed.
In concluding that the burden of proving the negligence of the defendant rested upon the plaintiff, and in determining the extent of proof necessary to show such negligence, this court in F. W. Woolworth Co. v. Ney, supra [
“It seems to be genеrally held that the doctrine of res ipsa loquitur does, not apply to cases like the present, where the obligation of the store-keeper to his customers is to use ordinary care to keep the aisles, passage-ways, floors and walks in a reasonable safe condition. * * * No prеsumption of negligence arises from the mere fact of injury to a customer. Upon the plaintiff rests primarily the burden of showing that the injury was proximately caused by the negligence of the store-keeper, or one of its servants or employees. Actual or constructive notice of the presence of the offending instrumentality must be proven before the proprietor can be held responsible for the injury. * * * ”
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,
“The banana skin upon which the plaintiff stepped and which caused him • to slip may have been dropped within r a minute by one of the persons who : was leaving the train. It is unnecessary to go further to decide the case.” :
It is not necessary, however, to enter direct evidence as to the length of time a foreign substance has remained on the floor; it is permissible to allow a jury to infer the length of time from the nature and condition of the foreign substance. In Great Atlantic & Pacific Tea Co. v. Popkins, supra, wherein the plaintiff slipped on a lettuce leaf, this court stated [
“ * * * The lettuce leaf was shown to have been dirty, crumpled and mashed. The jury could find from that condition that it had been on the floor long enough to have raised a duty on' defendant to discover and remove it. * * *»
In the instant case, there was no evidence introduced as to how long the foreign substance upon which Mrs. Thompson slipped was on the floor. For aught that appears from the evidence introduced, • it might have been dropped upon the floor a.
It is thе contention of the appellee, however, not that the appellant negligently failed to inspect its premises, but that the inspection of the premises was performed in a negligent manner. Appellee’s argument seems to be based on the theory that a proper inspection of the floor was bound to reveal the existence of the foreign substance. In support, she calls attention to appellant’s answers to appellee’s interrogatories which were in evidence.
Answer 36: “Defendant has a full time porter who continuously inspects and cleans said first floor; he has no other duties. No time has elapsed since said porter inspected and cleaned said floor as he continuously inspected and cleaned said floor on said date.”
Appellee cites, among others, the case of Central of Georgia Ry. Co. v. Lee,
“We have declared the rule that evidence of an engineer of his keeping a vigilant lookout, under conditions where such lookout would discover a man on the track, is evidence that he did discover him, although he may also testify he did not. Southern Railway Co. v. Shelton, 136 Ala. 191,34 So. 194 ; Carlisle v. Alabama Great Southern Railway,166 Ala. 591 ,52 So. 341 .”
This theory is not applicable here.
By no stretch of the imagination can it be said that appellant’s answer to interrogatories, as set out above, means that the porter continuously inspected the exact spot where appellee fell; nor is the position-fortified by the presence in the store of a-supervisor and other employees who continuously inspect said floor, including the passageway, during- store hours. The porter’s duties required him to inspect and clean the entire first floor of the building in which appellant operates its business. The testimony shows that the aisle in which appellee fell was 7 feet wide and 122 feet long. Obviously, the porter cannot bе on all parts of the first floor at one and the same time.
Considering this insistence, and the evidence claimed to support it, it does not change the result. In order to prove that there was a negligent inspection, it is still incumbent upon appellee to prove, or to-offer evidence from which it can reasonably be said, that the foreign substance was on the floor at the time of the inspection. This, the appellee has failed to do.
We do not think the evidence is sufficient, under our cases, to make a case for the jury, and the appellant was due the affirmative charge.
Reversed and remanded.
Dissenting Opinion
(dissenting).
The facts sufficiently appear in the opinion of the Chief Justice.
Several Alabama cases have been concerned with the problem presented on this rehearing. Following are some
In Britling Cafeteria Co. v. Naylor,
In Kittrell v. Alabama Power Co.,
In the Britling case, supra, the plaintiff had gotten a verdict in the trial court and this court held the affirmative charge should have been given. In the Kittrell case, supra, the trial court gave the affirmative charge with hypothesis for defendant at the close of plaintiff’s evidence аnd we affirmed.
Another case stating the scintilla rule is Sullivan v. Alabama Power Co.,
“[1 & 2] * * * The entire evidence must be viewed in its most favorable aspect for the adverse party and where, from it, a reasonable inference may be drawn adverse to the party requesting it, the affirmative charge is improper. Or here, if from the evidence reasonablе inference may be drawn substantiating the claimed culpability of the defendant, a directed verdict for defendant is improper. * * *
“[11] * * * If common experience has demonstrated that dangers lurk in the method adopted or in the instrumentality maintained by a person he rests under the obligation of ascertaining the peril and taking precautions to avoid injury therefrom.
“[12] And, ordinarily, culpability for dereliction in this regard is a jury question, determinable under the particular circumstances.”
The evidence for the plaintiff in the case at bar from which the inference of negligence might be drawn is as follows (R. 34-35):
“A. There appeared to be a good deal of it [the substance on which plaintiff slipped] because I was away from it. * * * To my judgment, I would say it was sort of spattered. It was pretty hard to determine the area.
“Q. I will ask you if it was compact, or did it appear to be smeared? A. It was smeared.
“Q. Could you tell whether it had been tracked on?
“(Objection)
*572 “Q. All' right, now, :you say it appeared 'to be spattered and smeared on the floor? A: That’s right.”
The. evidence for the plaintiff further showed there was nothing to prevent the clerks from seeing the substance on the floor. And in answer to interrogatories the defendant stated that there was a porter on duty who cleaned thе floors and inspected them continuously. If such be true (continuous inspections) then it seems fair to say that the jury could have inferred from the condition of the offending substance that this • employee was negligent in not discovering it in time to protect invitees, such as plaintiff, by removing it.
We think three recent cаses by this court are sustentive in holding that the case presented a jury question, Great Atlantic & Pacific Tea Co. v. Popkins,
In the Popkins case the plaintiff slipped and fell in a grocery store on a piece of lettuce leaf and the court stated [
“ * * * The lettuce leaf was ■ shown to have been dirty, crumpled and mashed. The jury could find from that • condition that it had been on the floor long enough to have raised a duty on defendant to discover and remove it # * ‡ »
In the Weems case [
In the Bennett case, the leaf on which the plaintiff slipped was a vegetable leaf. “ ‘It was green and kind of rolled * * * appeared to be rolled up or crushеd’ ” and was dirty, pushed, or crumpled.
In each, of these cases this court, after serious deliberation, concluded that there was a scintilla of evidence to go to the jury and that the affirmative charge was properly refused.
It is impossible tt> rationalize any distinction between the last three cited cases and the one at bar.
Lead Opinion
On Rehearing
Application for rehearing overruled.