Daniels v. Morgan & Lindsey, Inc., 44438
Decision Date | 08 May 1967 |
Docket Number | No. 44438,44438 |
Citation | 198 So.2d 579 |
Parties | Margaret Ann DANIELS v. MORGAN & LINDSEY, INC. |
Court | Mississippi Supreme Court |
Kelly McKoin, Biloxi, for appellant.
Ben H. Stone, Eaton, Cottrell, Galloway & Lang, Gulfport, for appellee.
This case was first tried in the County Court of Harrison County. At the conclusion of the evidence, the judge instructed the jury peremptorily to find for appellee. On appeal to the circuit court, the case was affirmed. It now comes here and we are affirming.
This is a regrettable case in that the appellant slipped and fell, receiving a serious and permanent injury. However, we cannot permit our sympathies to dictate decisions.
There are only two assignments of error: (1) That the court erred in granting the peremptory instruction; and, (2) that the court erred in admitting in evidence a sheet of instructions furnished by the manufacturing company in connection with the products used by appellee in cleansing and dressing of its floors.
On July 11, 1964, about 1:00 p.m., appellant entered appellee's store to buy some shades. She turned to the right, down the aisle toward the back where the shades were. She slipped about midway down the aisle, one foot going forward and the other backward. She couldn't stop her fall and went down on her right knee which she heard pop when it hit the floor. After falling, she looked in front of her. She said the floor was heavily waxed. The reason she concluded this was that the floor was 'shining, slick, highly polished and glittering like.' From this, she assumed and stated the floor was heavily waxed, and that it was 'clear like a mirror.' As far as she could tell, the floor was clean. She did not notice any foreign substance or debris.
Her husband and son were in the A & P Store near by. She testified her daughter-in-law was in the store buying something for the children, but her daughter-in-law did not testify. At the time, plaintiff was wearing heels about one and a half inches high which she imagined were about the size of her second finger and on which there were attached steel tips. When asked whether the floors were approximately the same as in the courtroom where the case was being tried, to-wit: asphalt tile, appellant answered, 'I imagine they were.'
The next witness for appellant was her husband, Leroy Daniels, who testified that he and his oldest son were in the A & P Store, about 1:00 p.m. on July 11, 1964. A colored man came and told him that his wife was hurt. He left everything and went to her. He slipped twice going into the store and caught on the counter, not far from her. He also said that the floors looked like they had just been wet, that they were 'slick.' He could see her prints where she slipped on the floor. He thought the left foot slipped about two, or two and a half feet, and he indicated about how long the strip was for the right foot. He denied that he was running in the store, but when asked, 'You were pretty much in a hurry?' His answer was, 'Well, wouldn't you be, if your wife was hurt?'
His opinion was there was wax on the floor, based on the fact the floor was glittering, and there were marks where the heels had slipped. He said he could tell there was wax on the floor because 'you could see it, it just looked slick, it looked greasy like.' He saw no other objects on the floor. The floor looked clean to him.
Appellant had been in the same store previously and the floors were always clean and well polished. On this occasion the floor was clean, and the only complaint she had was too much wax.
Leroy Daniels, Jr., appellant's son, was with his father at the A & P Store. He said they were told of the accident, and 'we run over there.' His father was in front of him. The son said, 'Well, he went through the door and he liked to have slipped down as he went through the door-right in side.' This witness said that the colored man drew his attention to the floor where the 'groove marks' were on it. It looked like heavy wax-it was 'shining in other words.'
He testified there were two marks-one where the heel slipped forward and one where the heel went backward.
Objection was sustained to this because of the conclusion that the heel slipped.
On cross-examination, when asked if he had a chance to observe these floors and look at them, his answer was, 'Yes, sir; I couldn't swear if there was wax on them or not, but they were shining and slippery.'
Here appellant rested. On motion for a peremptory instruction the county judge held the evidence required a response by appellee.
Appellant made no complaint as to the floor, its type, installation, or anything connected therewith, except the shining and slippery condition which she and her husband attributed to wax. The son said he could not swear it was wax even though he was the one who called the mark where his mother fell a 'groove.'
There was no evidence that anybody examined this so-called groove. If there was an accumulation of material of any sort, the edges of the groove, if it were a groove, would have shown it.
Appellee introduced William L. Gary, its assistant manager, whose duty it was to maintain the floor. The floor was asphalt tile, a common type such as was in the courtroom where the case was tried.
This witness had had three years with the University of Iowa as a floor maintenance man, whose duties dealt with stripping and sealing about every type of floor they had. He also dressed, waxed and maintained the floors for the University. In addition, the witness had been with appellee for about one year, ane had been at the store in Gulfport for three to four months at the time of the accident. It was his duty and responsibility to take care of the floors. They were swept daily, sometimes twice a day, depending upon the amount of traffic and whether debris had spilled or dropped on the floor. Any debris spilled or dropped on the floor was removed immediately by him. Once a month they worked, 'stripping and dressing the floors.' In that process they used a soap detergent known as Miko diluted with water. This was spread on the area for ten to fifteen minutes, after which it was mopped. Then rinse water was used until all traces of the soap were gone. They tried to do this once a month and in that way keep any wax buildup from accumulating. The process is stripping the floor and not just wet mopping it. The dressing they put on the floor was known as 'Sole Grip' with a non-slip finish. It was applied by the witness personally in thing layers, or coats, with a regular cotton mop. He did the work personally to make sure that substances would not go to the counter board and so foot traffic would not cause a buildup over the counter edge. Before the Sole Grip was applied the floor was allowed to dry. He had three high school boys who came and helped scrub the floors at night, under his strict supervision; but they did not apply the dressing, that was done by the witness himself. The store had set of instructions relative to the dressing used which sheet was stapled to the wall where the janitorial supplies were kept. He did not buff the floor because the dressing was a self-polishing dressing which caused a halfway gloss. Regular walking on the floor and general sweeping kept the gloss. It was what they said is 'self-polishing.'
At this point, the defendant introduced a sheet which tells of this particular chemical, its outstanding properties; that it complied with and exceeded all laboratory test requirements under federal specifications, and more than meets the requirement of the rubber manufacturers association and with directions as to how to apply it. Objection was made to the introduction of this sheet issued by the manufacturers of Sole Grip and Miko. The court overruled the objection to its introduction, and we think properly so.
The floor was prepared as herebefore mentioned on July 6, just five days before the accident involved. The floors had been stripped and redressed with Sole Grip under the procedure outlined. This was done at night so the floor would have the entire evening and night to dry.
Mr. Gary testified that usually every morning he walked the entire floor space of the store, plus making morning inspection which gave him a chance to examine anything that might be out of line, like an empty box on the floor or any hazard that would be on the floor. He did this on the morning after the last dressing and the surface appeared to be hard and nonslippery. He tested it for slipperiness by shuffling his feet in two or three different spots throughout the store, and found no slipperiness. He also observed the floor on the mornings of July 8, 9, and 10 during the regular store house. It was his duty to maintain a steady policing of the area, and nothing had been discarded on the floor which might have caused on accident. He never found any slippery spots or anything on the floors. He checked all of the floors, since he had to make reports in the morning. He testified there was not a lot of wax on the floors because he had stripped the floors that Monday evening, and then put one general layer of Sole Grip on it. On the morning of July 11, 1964, the date of the accident, he walked around and observed the floor of the store and found no slippery spots and debris. Everything had been thoroughly swept. The store opened at 9:00 a.m. He estimated that on the day of the accident, between 9:00 a.m. and the time appellant received her injuries there were between 100 and 150 people who had walked over the area where Mrs. Daniels fell. He was in the stock room at the time of the accident. A few minutes after she had fallen he came to the area and they were taking her to a doctor. At that time he checked the area where the accident happened to see if there was any debris. He found none and slid along the floor to ascertain if he could find any slippery spots, which he could not. He walked through the entire aisle, testing it...
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