Opinion
6 Div. 420.
January 11, 1934.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
John S. Coleman and Bradley, Baldwin, All White, all of Birmingham, for appellant.
No duty rests upon the owner or occupant of premises abutting on a sidewalk to keep the sidewalk in repair, and such owner is not liable for a defect in the sidewalk which he did not create. Hill v. Reaves, 224 Ala. 205, 139 So. 263; 41 A.L.R. 212, note; 13 R. C. L. 321. Where plaintiff relies on a defective condition of premises claimed to be occasioned by negligence of defendant, the burden is on plaintiff to prove defendant guilty of negligence, and plaintiff's failure to adduce such proof entitles defendant to the affirmative charge. Golson v. Covington Mfg. Co., 205 Ala. 226, 87 So. 439; Amer. C. I. P. Co. v. Landrum, 183 Ala. 132, 62 So. 757; Carlisle v. C. of G. R. Co., 183 Ala. 195, 62 So. 759; 45 C. J. 1165. It was error to give plaintiff's charge D, as defendant had also pleaded the general issue and such charge eliminated the plea of the general issue. L. N. R. Co. v. Pearce, 142 Ala. 680, 39 So. 72; B. R. L. P. Co. v. Haggard, 155 Ala. 343, 46 So. 519; Frierson v. Frazier, 142 Ala. 232, 37 So. 825; Ala. S. W. Co. v. Thompson, 166 Ala. 460, 52 So. 75; B. R. L. P. Co. v. Hunt, 200 Ala. 560, 76 So. 918; L. N. R. Co. v. Mertz, 149 Ala. 561, 43 So. 7; L. N. R. Co. v. Moerlein Co., 150 Ala. 390, 43 So. 723; B., E. B. R. Co. v. Hoskins, 14 Ala. App. 254, 69 So. 339. The burden is not on defendant to prove contributory negligence on the part of plaintiff where the evidence introduced by plaintiff establishes this fact. North B'ham. S. R. Co. v. Calderwood, 89 Ala. 247, 7 So. 360, 18 Am. St. Rep. 105; Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 45 L.R.A. 767, 74 Am. St. Rep. 53; Stone v. Pratt C. C. Co., 202 Ala. 498, 80 So. 882; Taylor v. Bamberger E. R. Co., 62 Utah, 552, 220 P. 695. It is error for the trial court to arbitrarily limit the right of cross-examination of witnesses on material facts. Oden-Elliott L. Co. v. Daniel-Gaddis L. Co., 210 Ala. 582, 98 So. 730; Sloss, S. S. I. Co. v. Reid, 184 Ala. 647, 64 So. 334. Where jury verdicts are grossly excessive, the appellate court will reverse and remand the case for another trial or materially reduce the amount of the verdict. St. L. S. F. R. Co. v. Trice, 202 Ala. 352, 80 So. 434; B. R. E. Co. v. Ward, 124 Ala. 409, 27 So. 471.
Ewing, Trawick Clark, of Birmingham, for appellee.
Defendant's negligence and relation to the cause of plaintiff's injuries may be established by circumstantial evidence and the reasonable inferences to be drawn therefrom. A. G. S. R. Co. v. Demoville, 167 Ala. 292, 52 So. 406; Drennen v. Smith, 115 Ala. 396, 22 So. 442; Webb Co. v. Riley, 16 Ala. App. 570, 80 So. 144; Id., 202 Ala. 400, 80 So. 482. The burden is ordinarily upon the defendant to prove to the reasonable satisfaction of the jury the truth of its special plea of contributory negligence. U.S.C. I. P. F. Co. v. Williams, 213 Ala. 115, 104 So. 28; O'Brien v. Tatum, 84 Ala. 186, 4 So. 158; Pullman P. C. Co. v. Adams, 120 Ala. 581, 24 So. 921, 45 L.R.A. 767, 74 Am. St. Rep. 53; Montgomery v. Wyche, 169 Ala. 181, 53 So. 786. Where a charge embodies a correct abstract proposition of law, the giving of it does not constitute reversible error, even though it is misleading, if the adverse party fails to request an explanatory charge. S. M. R. Co. v. Shearer, 58 Ala. 672; Republic I. S. Co. v. Howard, 196 Ala. 663, 72 So. 263. The discretion of the trial court as to the extent, course, and scope of cross-examination will not be reviewed unless there has been an abuse of such discretion to the injury of the complaining party. Meador v. Evans, 188 Ala. 229, 66 So. 446; C. of G. R. Co. v. Stephenson, 189 Ala. 553, 66 So. 495; Bradford v. Buttram, 205 Ala. 599, 88 So. 829. The amount of damages assessed by the jury should not be disturbed unless it is palpably improper and out of line with verdicts upheld in similar cases. City Council of Montgomery v. Shirley, 159 Ala. 239, 48 So. 679; Woodward Iron Co. v. Sheehan, 166 Ala. 429, 52 So. 24; Guidry v. Morgan's Co., 140 La. 1007, 74 So. 534, L.R.A. 1917D, 962; Murphy v. Gladney's, Inc., 12 La. App. 442, 124 So. 780; Magee v. Vaughan (D.C.) 212 F. 278; Boyd v. Bangor Co., 111 Me. 332, 89 A. 139; Cornell v. Chicago, 169 Ill. App. 441; Cicero v. Bartelme, 114 Ill. App.? 9.
As a general rule, no duty rests upon the owner or occupant abutting a sidewalk to keep the same in repair, and he is not liable for defects which he did not create. Hill v. Reaves, 224 Ala. 205, 139 So. 263; 13 R. C. L. 321, § 265. But, where the abutting owner or occupant, as here, creates or establishes a driveway over or across a sidewalk for the use of his patrons or customers to go to or from his place of business, it becomes his duty to use reasonable care to see that so much of the sidewalk so used is kept in a reasonably safe condition for pedestrians. The plaintiff's evidence tends to show that she slipped and fell on that part of the sidewalk as used for a driveway of the defendant entering its place of business, that there was a slippery substance there that "looked like soapsuds," and "was slick, all right." The plaintiff's evidence also showed that she fell after 9 o'clock that night, while the defendant's only witness testified that she fell about 4:30 or 5 o'clock that afternoon, and that the sidewalk at the time was clean and safe. There being a conflict, the jury evidently adopted the plaintiff's theory, so the question is, What was the condition of the sidewalk at the time the plaintiff's evidence shows that she fell, and was the defendant responsible for same? The defendant's witness testified to washing and cleaning the crossway over the sidewalk that afternoon and denied using soap, but did say that lime was used, and that sometimes "a little waste oil, black oil from motors, will drop around in spots and we use lime for a sort of bleaching process; it helps to cut the grease too, to some extent." Thus we find from defendant's evidence that oil or grease did fall or drop at this point, and it was a question for the jury as to whether or not it had been removed by the cleaning that afternoon. True, the defendant's witness said the oil was dark, and the plaintiff's witnesses said it looked like soapsuds, and one that "it looked right slick, white like white grease," but this conflict could have been reconciled by the jury from a reasonable inference that, while the oil or grease may have been dark, the lime used did not remove all of the grease or oil and gave it a whitish or soapsud appearance. True, also, the defendant's witness testified that the washing was thorough and that a negro helper used a scrub brush, but the jury could reasonably infer, from all the evidence, that the cleaning was not thorough, and the plaintiff slipped and fell because of oil or grease on the sidewalk. At any rate, we do not think that the trial court erred in refusing the defendant's requested general charge.
The plaintiff's given charge, set out in the fifth assignment of error, was a correct statement of law. It did not instruct a finding, and did not therefore assume that the plaintiff had made out a case of recoverable negligence. If it was misleading, it should have been explained by a requested charge. Moreover, the oral charge of the court placed the burden of proof upon the plaintiff to prove the negligence as charged in the complaint and that it was the proximate cause of the plaintiff's injury. This charge is unlike the one dealt with in the cases of Alabama Steel Wire Co. v. Thompson, 166 Ala. 460, 52 So. 75, and Frierson v. Frazier, 142 Ala. 232, 37 So. 825, and is not controlled by the other cases cited in brief.
We do not think that the trial court committed reversible error in not requiring the witness to answer the questions set out in the assignments of error 6 and 7. We agree with the trial court that the information sought was substantially covered by the previous testimony of the witness.
There was no proof as to external injuries other than a considerable swelling of the knee; the plaintiff lost only about two months from her work, and, while she may have suffered pain and inconvenience from her knee, and from which she was not entirely free at the time of the trial, she failed to prove that her injuries were so permanent and would be so continuous as to justify the amount of damages awarded by the jury, and the trial court should have granted the defendant's motion for a new trial or required a reduction of same. There being no reversible error, however, in the record other than this, the case will stand affirmed if the plaintiff will, within thirty days, file a remittitur of all damages in excess of $1,200, otherwise the cause will be reversed and remanded. Section 6150 of the Code of 1923.
Affirmed conditionally.
GARDNER, BOULDIN, and FOSTER, JJ., concur.