Battles v. Wellan

• Decision Date: 05 January 1940
• Docket Number: 5984.
• Citation: 195 So. 663
• Court: Court of Appeal of Louisiana — District of US
• Parties: BATTLES v. WELLAN.

195 So. 663

BATTLES v. WELLAN.

No. 5984.

Court of Appeal of Louisiana, Second Circuit.

January 5, 1940

Rehearing Denied Feb. 7, 1940.

Writ of Certiorari and Review Denied April 29, 1940.

Appeal from Ninth Judicial District Court, Parish of Rapides; R. C Culpepper, Judge.

Action by Stella Battles against Louis Wellan for personal injuries. From a judgment for defendant, plaintiff appeals.

Affirmed.

A storekeeper was not liable on ground of negligence for injuries sustained by plaintiff who slipped and fell on tile flooring in arcade at store entrance, where it had rained there was testimony that there were small pools of water in slight depressions at or near point where plaintiff fell plaintiff testified that when she entered arcade she was looking forward toward dresses in show window, and witnesses for both parties testified that flooring was of standard approved type used throughout the country.

Vincent Hazleton and Leo Gold, both of Alexandria, for appellant.

Gist & Thornton, of Alexandria, for appellee.

DREW Judge.

The lower court has correctly set out the pleadings and issues in this case in the following opinion:

" This is a suit for recovery of alleged damages in the sum of $1,575.00, composed of $1,000.00, for pain and suffering physically; $500.00 for mental pain and anguish $50.00 for loss of employment and $25.00 for medical treatment, sustained by plaintiff as the result of slipping up and falling upon the tile flooring on the foyer or arcade at the entrance of defendant's department store located at the corner of Third and Washington streets in the City of Alexandria, Parish of Rapides, Louisiana, while walking over said flooring, at about 5:30 P. M., June 22, 1938, for the purpose of inspecting the goods, wares and merchandise of defendant which were on display in the show windows in said arcade.

" It is alleged that rain had been falling on the afternoon of the day of the accident and water had been allowed to accumulate and remain on said tile flooring, producing a slippery condition and which caused plaintiff to slip and fall in walking over same; that it was gross negligence and carelessness on the part of the defendant, his agents and employees in permitting the water to remain on the flooring. It is alleged that the said flooring is composed of hard, octagonal shaped, ceramic tile, which presents a smooth, slippery surface, especially when damp or wet.

" Petitioner alleges that she had only proceeded a step or two inside said foyer when she reached a spot on the tile flooring on which water had been allowed to collect and remain, and that there she slipped, lost her balance and fell forward heavily; that as a result of the fall she injured her nerves, tissues, ligaments, muscles and bones in and about her right arm, wrist and hand, and that she sustained a severe fracture of the distal end of the radius bone in her right arm, wrist and hand.

" Plaintiff alleges that she was lawfully on the defendant's premises at his implied invitation to come and inspect his wares and merchandise; that she rightfully assumed that the entrance to the building and its floor were safe for use on her part, and that she was totally ignorant of the dangerous condition of the floor.

" In answering plaintiff's petition, defendant denies any negligence on his part; denies that any dangerous condition existed in or about his store on the date alleged or at any other time; avers that the style and composition of the floor in the arcade and entrance to his store is similar to that found in most all department stores in cities in Louisiana, and elsewhere, and presents the same surface and characteristics with reference to smoothness as other similar tiles in other stores; avers that if any water had accumulated and remained there on the evening alleged, he had no knowledge of any such condition; that said passageway or foyer was covered over and that it was impossible for any water to accumulate thereon from falling rain unless the rain was accompanied by excessive winds, ‘ which was not the condition on the afternoon of June 22, 1938.'

" Further answering, defendant pleads, in the alternative, negligence on the part of plaintiff barring recovery.

" There is not much variance between the allegations of fact on the part of both plaintiff and defendant and the facts testified to by the witnesses. Plaintiff testified that she had entered the arcade from the street for the purpose of looking at some dresses in the middle show window inside the arcade or passageway in front of the entrance into the store proper; that she was not looking at the floor particularly, but was looking forward toward the dresses in the glass show window, and suddenly slipped in a little pool of water, or a wet, slippery place on the floor caused by the collection of water from the rain which had fallen a few hours previously. The testimony showed that it had rained. There was certain testimony to the effect that there were slight depressions in places on the flooring, caused possibly by a slight sinking of the floor foundations during the rather long period of years since the building had been constructed. On the other hand, two architects, Mr. Harris who testified for plaintiff and Mr. Roberts who testified for defendant, both stated that the tiling found in this floor is the same type which was universally used in buildings at the time this was constructed, some 20 odd years ago, and not much different from the kind used now in similar types of buildings. It appears to have been the standard type, both as to material and construction. Also, it appears that there is nothing peculiar about the construction of the arcade itself that would distinguish it from those of other store buildings in this and other cities.

" Just the day before this case was tried, there was a rather severe rain storm, accompanied by high wind, and certain witnesses testified to having observed the tile floor in question after the rain, stating that they saw some small pools of water in slight depressions at or near the point where plaintiff slipped and fell. However, Mr. Wellan, the defendant, testified that he had never observed any such condition at any time nor had his attention ever been called to such a condition. There was testimony to the effect that the occupants of the building prior to defendant's occupancy, had been putting sawdust on the floor at times when the floor was wet, as a precaution against people slipping and falling, but defendant and some of his employees testified that defendant had used sawdust also, not on account of rain but that it was used in cleaning

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