Summary
In Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447, there were no spots left on the floor and the floor was proved to have been properly and carefully cleansed and polished in the usual and customary manner.
Summary of this case from Montgomery Ward Co. v. WindhamOpinion
No. 31810.
September 30, 1935. Suggestion of Error Overruled October 28, 1935.
1. NEGLIGENCE.
Owner or person in control of building must exercise reasonable care to so construct and maintain floors that they shall be reasonably safe for those who have right to use them, when and while the users are themselves exercising reasonable care in that use.
2. NEGLIGENCE.
Doctrine of res ipsa loquitur has no application to cases where danger complained of is one which is entirely open and visible.
3. NEGLIGENCE.
Owner or person in control of a building is not insurer of safety of building.
4. NEGLIGENCE.
Test of liability of owner or person in control of building to invitee is that of "negligence," which is failure to take such reasonable care as is taken or should be taken by experienced and prudent men.
5. NEGLIGENCE.
Owner or person in control of building is not liable to invitee for injuries where construction and maintenance of building is substantially same as that which has been in common and general use for long period of time in similar buildings, in absence of showing that such construction, maintenance, and use is so unreasonably unsafe that impartial persons could hardly be in disagreement upon that issue.
6. HOSPITALS.
In action by patient against hospital for injuries which she received when she fell upon waxed linoleum floor, evidence of defendant's negligence held insufficient for jury.
APPEAL from circuit court of Hinds county.
HON. JULIAN P. ALEXANDER, Judge.
Action by Mrs. Pearl B. Daniel against the Jackson Infirmary. Judgment for defendant, and plaintiff appeals. Affirmed.
Alexander Satterfield, of Jackson, for appellant.
The infirmary had no right, and the jury so found, to use the dance floor as a standard of safety for the use by those whose very presence in its hallways attested their infirmity of body or limb.
It is elementary that an infirmary or hospital is liable for an act or omission of its servants or agents.
Richardson v. Dumas, 106 Miss. 664, 64 So. 459.
If by the act of the defendant its floors are made slippery and dangerous for the use by those whom it is expected to serve it makes no difference what material is used or combination of materials is used, just so that the result creates a dangerous condition. This result may follow the use of improper materials or the excessive or improper use of ordinary materials.
Hudson v. Woolworth Co., 275 Mass. 469, 176 N.E. 188; Western Union Tel. Co. v. Blakely, 162 Miss. 859, 140 So. 336; Kalb v. Fisher, 139 A. 237; Markman v. Bell Stores Co., 132 A. 178; White v. Mugar, 181 N.E. 725; McClarken v. Ralphs Grocery Co., 20 P.2d 66; Ransom v. Kreeger Store, Inc., 158 So. 600; McNeil v. Brown Co., 22 F.2d 675; Robinson v. Woolworth Co., 261 P. 253; Langley v. Woolworth Co., 131 A. 194; Bloomer v. Snellenburg, 69 A. 1124; Field v. Gowdy, 199 Mass. 568, 85 N.E. 884.
The courts emphasize the necessity for the use of reasonable care by the defendant. This in turn emphasizes that it is for the jury to judge as to whether there was reasonable care. In doing so they would properly consider whether others have probably fallen on the same floor. That others had already done so, as in the instant case, would alone be sufficient evidence of this probability. Hence the maintenance of such a condition is negligence, because it is not reasonably safe.
Gerber v. Smith, 263 S.W. 974; Bradford v. Woolworth Co., 140 S.E. 105; Benesch Sons v. Ferkler, 139 A. 557; Haverty Furniture Co. v. Jewell, 38 Ga. App. 395, 144 S.E. 46; MacDonald v. F. W. Grand, Inc., 89 Pa. Super. 526; Scott v. Klines, Inc., 284 S.W. 831; Tack v. Ruffo, 161 N.E. 587; Grzboski v. Bernheimer Leader Stores, 143 A. 706; Woolworth Co. v. Wood, 124 S.E. 110; Woolworth Co. v. Kinney, 169 N.E. 562; Dalgleish v. Oppenheim, etc., Co., 152 A. 759; Woolworth Co. v. Saxton, 177 N.E. 219; Parker v. Great A. P. Tea Co., 161 S.E. 209; H.F. Hohlt v. Routt, 48 S.W.2d 386; Western Union Tel. Co. v. Blakely, 162 Miss. 859, 140 So. 336; S.H. Kress Co. v. Dyer, 49 S.W.2d 986; Kroger Grocery Co. v. Monroe, 237 Ky. 60, 34 S.W.2d 929; Hall v. Great A. P. Tea Co., 115 Conn. 698, 160 A. 302; Randolph v. Great A. P. Tea Co., 2 F. Supp. 463; Woolworth v. Erickson, 127 So. 534.
Certainly the allegations in the case at bar were sufficient. If there was any evidence to support them (and there was cumulative direct testimony thereto) it was for the jury.
Kroger Grocery Co. v. Monroe, 237 Ky. 60, 34 S.W.2d 929; Bowden v. Kress Co., 198 N.C. 559, 152 S.E. 625; Holmes v. Ginter Restaurant Co., 54 F.2d 876.
The motion for new trial was improperly awarded. It has caused this injured lady untold suffering, inconvenience and expense. She has been compelled to appeal a case she had won. Although, in the meantime pending the second hearing, her injuries were tragically increased by painful operations and her suffering, disability and expense doubled, the former judgment should be reinstated.
McCarty v. Mitchell, 151 So. 567. Butler Snow, of Jackson, for appellee.
The rule is undoubtedly as has been announced by the court repeatedly and as stated in appellant's brief, that the defendant hospital owed to the plaintiff, an invitee, the duty to exercise reasonable care to maintain its floors in a reasonably safe condition for plaintiff's use in passing to and fro thereon.
Western Union Tel. Co. v. Blakely, 162 Miss. 854; Kress v. Rockwood, 134 So. 82.
Subject to some limitations, perhaps, it seems to be generally conceded that negligence is not established by showing that an injury might have been prevented by the use of some device or precaution that has not yet been generally adopted.
20 R.C.L., p. 27, sec. 20; Bonawitt v. St. Vincent's Hospital, 182 N.E. 661; Tenbrink v. Woolworth, 153 A. 245; Spickernagle v. Woolworth, 236 Pa. St. Rep. 496; Abbott v. Richmond County Country Club, 207 N.Y. Supp. 183; Kipps v. Woolworth, 134 N.Y. Supp. 646; Tyron v. Chalmers, 200 N.Y. Supp. 362; Wilson v. Werry, 137 S.W. 390; Torbet v. Woolworth Co., 238 N.W. 140; Kipp v. Woolworth Co., 150 N.Y. App. Div. 283.
A person who enters a public place in connection with the business carried on in the premises occupies the position of an invitee (Goodwin v. Nelson Grocery Co., 239 Mass. 232; Radebaugh v. Woolworth Co., 214 Ill. App. 365); and the proprietor only owes to such person the duty of exercising reasonable and ordinary care for his safety.
Quinn v. Utah Gas Co., 42 Utah, 113; Plummer v. Dill, 156 Mass. 426; Mona v. Erion, 223 N.Y. App. Div. 526; Kipp v. Woolworth Co., 150 N.Y. App. Div. 283; Chilberg v. Standard Furniture Co., 115 P. 837, 34 L.R.A. (N.S.) 1079; 66 U.S. Law Review Jan., 1932, issue, p. 47.
The proprietor of premises to which the public is invited may use oil or soap to clean the floors thereof and no liability can be predicated merely upon such use unless negligence in the application of the cleansing element is shown, or the proprietor has notice of the dangerous conditions.
Goodwin v. Nelson Grocery Co., 239 Mass. 232; Radebaugh v. Woolworth Co., 214 Ill. App. 365; Chichos v. Foley Bros. Grocery Co., 73 Mont. 575; Quinn v. Utah Gas, etc., 42 Utah, 113; Plummer v. Dill, 156 Mass. 426; Higgins v. Goerke-Kirch Co., 91 N.J.L. 464; Kaufman Dept. Stores, Inc., v. Cranston, 257 Fed. 917; Schnatterer v. Bamberger, 81 N.J.L. 558; Mona v. Erion, 223 N.Y. App. Div. 526; Weller v. Consolidated Gas Co., 198 N.Y. 98; Ruppert v. Heights R.R. Co., 154 N.Y. 90; Kipp v. Woolworth Co., 150 App. Div. 283, 163 App. Div. 920; Lavine v. United Paper Board Co., 243 N.Y. 631; Abbott v. Richmond County Country Club, 211 App. Div. 232, 240 N.Y. 693; Curtiss v. Lehigh Valley R.R. Co., 233 N.Y. 554; Kerstein v. Goodman, 130 Misc. 714; Kaufman v. Young, 157 N.Y. Supp. 778; Kroger Grocery Baking Co. v. Monroe, 34 S.W.2d 929; Kipp v. Woolworth Co., 150 N.Y. App. Div. 283 ; Tyron v. Chalmers, Nos. 1, 2, 205 App. Div. 816, 818; F.W. Woolworth Co. v. Erickson, 127 So. 535.
One traversing a floor, the slippery condition of which is apparent, may, by assuming the risk of accident, relieve defendant of liability.
Cudahy Packing Co. v. Luyben, 9 F.2d 32; Bennett v. McAllister Co., 241 Ill. App. 502; Texas Pacific Coal Oil Co. v. Grabner, 10 S.W.2d 441; McFarlane v. City of Niagara Falls, 247 N.Y. 340; Zurich General Accident Liability Co. v. Childs Co., 253 N.Y. 324; Bohlen, Studies in the Law of Torts, p. 441; Smith v. Baker Sons, L.R. (1891) A.C. 325, 360; Crane v. Jordan Marsh Co., 169 N.E. 136; Kitchen v. Women's City Club of Boston, 166 N.E. 554; Chilberg v. Standard Furniture Co., 63 Wn. 414.
There was no obstruction on the floor and no foreign substance of any kind or character which occasioned plaintiff's fall. Plaintiff relies exclusively upon the fact that she fell on the floor. That the floor was polished and looked slick. No inspection was made thereof to even ascertain if the floor was in reality slick.
The proof is conclusive that over the period of seven or eight years in which the linoleum had been on the floors no one had ever fallen thereon up until the time of the plaintiff's accident, and the floors were in constant use.
Appellant, an invitee of appellee, while walking from her room on the third floor of appellee's hospital, on Monday, January 1, 1934, fell and broke her arm, which injury she avers was solely because of the highly polished, slick, slippery, and dangerous condition of the waxed linoleum-covered floor of the hallway upon which she was walking. It was shown by the undisputed testimony that the linoleum was the regulation Armstrong Battleship Linoleum of the same type and character in common use in stores, office buildings, and in other public buildings everywhere, and that it was installed in the customary and proper manner; that it was regularly cleaned and waxed on Friday of each week, and on no other day, in which process Fries Paste Floor Wax was used, this being the wax which was recommended for that purpose by the manufacturers of linoleum, and that the waxing was carefully done and the finish thereof was left in the manner as directed by the manufacturer, and that although this particular linoleum had been upon the floors of appellee's hospital for about eight years, and had been regularly cleaned and waxed as aforesaid, and had been in the daily use of numerous people throughout all that time, no previous injury had ever occurred from the use of the floors of the building.
The trial judge directed a verdict for the defendant; and, upon this appeal, a wealth of cases has been cited in the briefs. Appellant relies upon a line of cases of which Hohlt Co. v. Routt (Tex. Civ. App.), 48 S.W.2d 386, may be mentioned as typical; and appellee cites Bonawitt v. St. Vincent's Hospital, 43 Ohio App. 347, 182 N.E. 661, and those of a similar import. It is not to be denied that there is some inharmony among the numerous cases dealing with the subject, but all are in substantial accord upon the rule that the owner or person in control of a building, such as here under consideration, must exercise reasonable care to so construct and maintain the floors therein as that they shall be reasonably safe for those who have the right to use them, when and while the users are themselves exercising reasonable care in that use. And they are in accord also that the doctrine of res ipsa loquitur has no application to such cases when, as here, the danger complained of is one which is entirely open and visible; and all of course, agree that the proprietor is in no sense an insurer of safety. And most, if not all, of the courts are in agreement that a proprietor may use the proper and customary cleansing and polishing substances or materials on the floors when properly and carefully applied in the usual and customary manner, and are properly finished in the process, leaving no spots or pools of water or oil or grease or wax, or other like substance, which would leave dangerous particular places on the floor, as distinguished from the general finish, and there is no suggestion that in this case there was present any of such spots or pools.
In cases of this character, as in others involving like duties, "the test is not danger, but negligence; and negligence is the failure to take such reasonable care as is taken or should be taken by experienced and prudent men." Hammontree v. Cobb Const. Company, 168 Miss. 844, 854, 152 So. 279. The rule is, therefore, the same as that required by the law of master and servant in respect to appliances, ways, and methods. And ever since the decision in Kent v. Railroad Co., 77 Miss. 494, 27 So. 620, 78 Am. St. Rep. 534, the courts in this state have been committed to the proposition that a defendant charged with negligence as to an appliance, way, or method is not liable when he furnishes the appliance or avails of the way or uses the method customarily and generally employed by careful and prudent men long engaged in the same business, unless the unreasonable unsafeness in the appliance or way or method is so obvious that impartial persons could not well be in disagreement upon that issue. Hammontree v. Cobb Const. Co., supra, 168 Miss. 844, page 852, 152 So. 279; Newell Contracting Co. v. Flynt (Miss.), 161 So. 298, 300.
It is the more dependable from the standpoints both of practicability and of justice to look to the customary, generally recognized and commonly observed standards in any long-established line of business or occupation, when that business or occupation has many members, and to the sanctions of tried experience in such business or occupation for guidance as to what is adequate and proper therein rather than to elevate, above the sanctions of such long-tried and general experience, the notions or preferences of a particular jury, many of whose members have had no experience whatever in that business and sometimes with little or no opportunity for particular observation of it, save only that the courts and juries shall possess the reserved right to overrule any such customary standards of any business when the standards adopted and observed by that business are nevertheless so unreasonably unsafe, and so obviously so, that impartial persons could not well be in disagreement upon the issue, and, as we have already stated, such is the rule of law in this state.
Since the testimony establishes by an adequate array of witnesses, both expert and lay, without dispute, that the linoleum floor, which is complained of in this case, substantially as constructed and substantially as maintained by this appellee, is and has been for a long time in common and general use, under substantially the same method of maintenance, in stores, office buildings, and other such buildings where members of the public are invited to visit and do visit in unnumbered thousands every day and everywhere, and since the testimony fails to show that such installation, maintenance, and use is so unreasonably unsafe and impartial persons could hardly be in disagreement upon the issue, we must concur with the learned trial judge, unless we are authorized to make a distinction and lay down a different rule as to hospitals. But when we note that the aged, the infirm, and the sick, in great numbers, daily visit physicians' offices in office buildings and visit as well in stores and other like places, we must at once conclude that we are not warranted in attempting the suggested distinction.
Affirmed.