Armour & Company v. Rose

• Citation: 36 S.W.2d 70,183 Ark. 413
• Decision Date: 09 March 1931
• Docket Number: 196
• Parties: ARMOUR & COMPANY v. ROSE
• Court: Supreme Court of Arkansas

36 S.W.2d 70

183 Ark. 413

ARMOUR & COMPANY v. ROSE

No. 196

Supreme Court of Arkansas

March 9, 1931

Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge; affirmed.

Judgment affirmed.

George R. Herr and Hill, Fitzhugh & Brizzolara, for appellant.

Hardin & Barton, for appellee.

OPINION

MEHAFFY, J.

The appellant, Armour & Company, is engaged in the business of selling meats, refrigerator products, ammonia, compound lards, canned meats, pork and beans, pharmaceutical products cheese and other products at their branch office at Fort Smith, Arkansas, and T. H. McKay was manager from 1925 to and including the date of the accident to appellee September 30 1928.

On September 30, 1928, about 11 o'clock in the forenoon the appellee fell into an open, unguarded elevator shaft in the place of business of Armour & Company in Forth Smith, receiving serious and permanent injuries.

This action was brought against Armour & Company and Clarence Fine, its employee, for damages sustained by reason of his fall into the elevator.

It is alleged that appellant's negligence caused the injuries. Appellee was 44 years old and had operated a shoe repair shop in Fort Smith for about 20 years and was making about $ 300 per month in the operation of his business.

Appellant, Fine, was a traveling salesman, but was at the place of business of Armour & Company on Saturdays and Sundays. Appellee had been in the habit for seven or eight years prior to the accident of buying meat products from the Armour place on Sundays and other days of the week from Fine and other employees.

The manager of the Fort Smith branch had been instructed by his superiors to sell only to wholesalers, retail dealers in its supplies, hotels and large restaurants, its principal business being to sell for resale. They were permitted, however, to sell to the employees of appellant for their own use. The manager had instructed his salesmen to rigidly enforce this rule.

On the day of the accident, appellee, with his family drove to the place of business of Armour & Company about eleven o'clock and parked his car. He got out, walked to the front door of Armour & Company's place of business; the front door was open, appellee walked into the main entrance, up to a window where Mr. Fine and two or three other employees of Armour & Company were seated in the office room. Mr. Fine asked appellee what he could do for him, and appellee replied that he wanted to get some ham and bacon. Fine got the key and went with appellee back to the cooler where they found the bacon, but failed to find the ham. Fine then suggested that they go back to the smokeroom, as there might be some hams there. They walked out of the cooler, Fine locked the door, and led the way down a long, narrow, dark passageway to the smokeroom. He opened the door, switched on the light on the inside of the smokeroom, but when they got in the smokeroom they failed to find any hams. They walked back from the smokeroom, which had double doors, Fine opened the door, and stepped back for appellee to step out. Appellee stepped out, and Fine switched off the light, and pushed the doors and was in the act of closing them. Just as appellee stepped out and stepped back to wait for Fine, he stepped into an open elevator shaft, and fell upon the basement floor at the bottom, a distance of about fifteen feet. His hip and ankle were broken, and he was otherwise injured. The injuries are permanent.

The Armour & Company plant was not open in the regular way on Sunday, but some of the men in the office work there at times. There were two or three offices in the place, one for the manager, and another where traveling salesmen and other employees went on Sunday. The freight elevator was used to carry heavy articles. It had gates in front, and they were ordinarily closed when the elevator was not in use. There was an electric light over the opening of the elevator shaft, but this was not lighted on Sunday. The light was much dimmer in the plant on Sundays than on other days. As a rule, none of the electric lights were burning except the one in the shipping room, and lights would be turned on in the office if anyone was there on Sunday. Fine was usually in the plant on Saturday and Sunday, and occasionally made sales.

Fine and appellee had been friends for a number of years. Fine told appellee, in 1921 or 1922, that it was against the rules of the company for him to sell to appellee in the way he did, but in order to accommodate him he would do that, and while appellee continued to buy for seven or eight years, not only from Fine, but from others on Sunday, it was never suggested to him after the first time that there was any violation of the rules.

When a sale was made by Fine, tickets would be made out. According to Fine's testimony the ticket was made out against him. Appellee and others testified that the ticket was made out against appellee.

The testimony is in conflict as to whether the manager knew of the sales made by Fine, and it is also in conflict as to the number of sales made, but there is no dispute about the fact that the sales continued from time to time for seven or eight years. The evidence also shows that there was a sign displayed to the effect that no sales were made at retail.

As shown by the blue print, the passageway into which Fine and appellee walked, was eight feet wide. The door, however, through which they went, was in the middle of the room, so that when they stepped out, they were approximately four feet from the side of the passageway on which was the open shaft of the elevator. There is a conflict as to what occurred when they passed out. The appellee testified that Fine opened the door, and appellee stepped out of Fine's way, walking three or four feet, and fell into the elevator. Fine knew that the elevator was there, the appellee did not know it. Fine closed the door, turned the light out, and, as he turned around, saw appellee fall into the elevator.

The jury returned a verdict for $ 7,500. Judgment was entered, and, to reverse the judgment of the circuit court, this appeal is prosecuted.

The appellant contends that the primary question is: Was it negligent for the company to have its place unlighted and its elevator shaft open on Sunday when the usual activities of the plant were suspended for the day in obedience to law and its own custom?

Appellant says that no customers were expected, and that none could lawfully be received as such, and that, therefore, leaving the plant in this unlighted condition, and the elevator shaft without a guard on Sunday, is not negligence, because the company could not reasonably anticipate customers would enter there contrary to law and the rules and customs of the company.

The undisputed proof shows that the appellee had been going to the place of business for seven or eight years on Sundays to purchase articles from appellant. There is a conflict in the evidence as to how often he went. The appellee testified he went two or three times a month, but whether he had gone as often as he claimed or not, the appellant knew that the elevator was there, and that the shaft was open, and the passage was dark.

Fine himself testified that the dealings began in the summer of 1921 or 1922, and that the first time he made a sale he told appellee that it was against the rules to sell merchandise that way, but he would get it and charge it to himself. That was seven or eight years before the accident, and Fine does not claim that he ever suggested to him after that that it was a violation of the rules. Yet they continued to sell to him on Sundays, and, when he came on the morning of the accident, the undisputed proof shows that Fine went with him to get the articles he wanted, and Fine knew about the elevator and the appellee did not. Of course, it would not be negligence for the appellant to close its place of business on Sunday and leave the elevator shaft open if no customers were expected, but they had a right to expect that the appellee would come because it had been his custom for seven or eight years.

As to the negligence of Mr. Fine, he himself said that he went to the manager's office, procured the key and went out with the appellee, the appellee following him. The passage in which they were just prior to the accident was about eight feet wide, the door through which they came was in the middle of this passageway, and, after coming through the door and getting out of Mr. Fine's way so that he could close the door, the appellee testified that he took one or two steps and went into the shaft.

Under the evidence in the case, it was a question of fact for the jury as to whether the appellants were guilty of negligence. Actionable negligence means the violation of some duty which results in injury to another, and in this case we think it a question of fact properly submitted to the jury as to whether the appellants owed the appellee any duty and whether appellee was injured because of a violation of that duty.

Appellants contend that the case should be reversed because of the contributory negligence of appellee. Appellee testifies that he was going with Mr. Fine; that he did not know there was an elevator there; that the passageway was dark; that he only took one or two steps in getting out of the way of Mr. Fine, and fell into the elevator. The question to be determined was whether the appellee at the time acted as a man of ordinary prudence would have acted under similar circumstances, and this was also a question for the jury.

Appellee was asked how close he went to the elevator when he went in there, and he said while he could not tell exactly, it was maybe two or three feet. He did not know the elevator was there, and h...