O'Brien v. Tatum

• Decision Date: 04 May 1888
• Citation: 4 So. 158,84 Ala. 186
• Court: Alabama Supreme Court
• Parties: O'BRIEN v. TATUM.

4 So. 158

84 Ala. 186

O'BRIEN v. TATUM.

Supreme Court of Alabama

May 4, 1888

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action for personal injuries by R. E. O'Brien against Berry Tatum. Judgment for defendant, and plaintiff appeals.

Rice & Wiley, for appellant.

Troy, Tompkins & London, for appellee.

CLOPTON J.

The action is brought by appellant to recover for injuries sustained from having fallen into an opening in the floor of defendant's store, which was used for operating an elevator. In the first two counts of the complaint the negligence of the defendant is charged to consist in having caused the opening to be made, and leaving it exposed and unprotected, so as not to guard and secure the public against injury; and the third count avers, in addition to this act of negligence, that the defendant, knowing the existence of the opening, and that it was dangerous, failed to notify the plaintiff, who was ignorant of the same. The general rules of law governing the duty and liability of defendant, and the correlative duty of the plaintiff, are so well settled that a general statement, without elaboration or citation of authorities, and an application of them to the tendencies of the evidence, will suffice for the purposes of this case. Being the owner and proprietor of a public store on one of the streets of the city of Montgomery, to which the public generally are invited to come and trade, or on other business, the law imposes upon the defendant the obligation to use proper care and diligence to keep the premises, and the pass-ways thereto and therein, reasonably safe for persons visiting the place by his invitation, express or implied. This duty extends to all the passage-ways in the store which visitors on business may ordinarily have to use in its transaction, or may use by the invitation or permission of defendant; and if there be any defect in such places, which renders them dangerous, known to the defendant, and unknown to such visitors, it is the duty of the defendant to give them warning or notice thereof, in order to enable them, with ordinary care, to avoid the danger. The principle is clearly and succinctly stated by GRAY, J., as follows: "The owner or occupant of land is liable in damages to those coming to it, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for any injury occasioned by the unsafe condition of the land, or of the access to it, which is known to him and not to them, and which he has suffered negligently to exist, and has given them no notice of." Carleton v. Steel Co., 99 Mass. 216.

The elevator was on the south side of the store, about midway between the front and rear. The opening was about five feet square, three sides of which were protected from approach by boxes and barrels, but the side next to the southern wall was unprotected. At the south-east corner there were ropes extending about 18 inches beyond the opening, with which persons passing in the direction plaintiff was going would come in contact if walking too near the opening. The pass-way was between the opening and the south wall, and was principally intended for the use of the employes of the defendant, but was sometimes used by customers, but not often, as the business was mainly carried on in the...