Elias v. New Laurel Radio Station, Inc.

• Decision Date: 19 November 1962
• Docket Number: No. 42435,A-W,42435
• Citation: 92 A.L.R.2d 1065,245 Miss. 170,146 So.2d 558
• Parties: , 92 A.L.R.2d 1065 Thomas W. ELIAS v. NEW LAUREL RADIO STATION, INC., d/b/a Bowl-ay Lanes.
• Court: Mississippi Supreme Court

Page 558

146 So.2d 558

245 Miss. 170, 92 A.L.R.2d 1065

Thomas W. ELIAS v. NEW LAUREL RADIO STATION, INC., d/b/a Bowl-A-Way Lanes.

No. 42435.

Supreme Court of Mississippi.

Nov. 19, 1962.

Pershing B. Sullivan, Grover C. Doggette, Collins & Tew, Laurel, for appellant.

Beard, Pack & Ratcliff, Laurel, for appellee.

McELROY, Justice.

This is an appeal from the Circuit Court of the Second Judicial District of Jones County, Mississippi. The case was tried before the court and a jury. At the conclusion of the case, after the plaintiff and defendant had rested, the appellee made a motion for a peremptory instruction which was sustained by the court. The only assignment of error on this appeal is that the court erred in granting a peremptory instruction for the appellee.

The New Laurel Radio Station, Inc., a corporation, trading and doing business as Bowl-A-Way Lanes, operated a bowling alley in the City of Laurel. In the operation of this bowling alley, the appellee invited members of the general public to bowl for a consideration. In connection with the bowling operation and in the same building within a few feet of the portion of the building reserved for bowling by its patrons, appellee operated a restaurant or a snack bar where it sold or otherwise dispensed to persons on the premises, food, coffee, Coca-Colas, water and other solid, liquid and edible substances. It is contended that the appellee negligently allowed persons using the establishment to carry the liquid and solids over an area of the establishment used and occupied by paying bowling participants. As a result of this operation, the liquid and solid substances were dropped and spilled on the floor where bowling participants may unknowingly step in the substances. It is also contended that this condition existed on February 25, 1960, the date of the accident, and that the appellee was negligent and careless and with reckless disregard to the safety of its fee-paying bowling participants, allowed its customers to deposit a large quantity of drinking cups partially filled with ice and liquid substances into two large receptacles on each side of the cashier's stand, the place for the paying of bowling fees, and that as a result, water and liquid substances were caused to be spilled on the floor adjacent; that at the time complained of, there were liquid substances that had existed near the cashier's stand for such a time that the appellee knew, or in the exercise of reasonable care should have known was dangerous. The appellant claims that due to this condition of the bowling establishment's floor, he stepped in a wet substance around the control center which caused him to fall while bowling; that as a direct and proximate result of the negligence and the fall he suffered a fracture in the left hip, was made sick and lame, externally and internally and caused to suffer and to be permanently injured in his health and was damaged in the sum of $126,212.35, actual and punitive, for which sum he sought judgment against the appellee.

As to the charge of the appellant that the appellee was negligent, the defense is to the effect that appellant was an experienced, expert and professional bowler who knew of the dangers inherent in stepping on any wet spot or substance while wearing his bowling shoes and continuing to bowl without cleaning the substance from his shoes or allowing it do dry; that he did know of the alleged wet condition of the concourse floor of the bowling alley; that he left the area of the appellee's bowling alley while wearing his bowling shoes and went to the concourse floor where he stepped in the wet substance and assumed the risk of the fall and injury which he suffered.

The testimony is to the effect that the New Laurel Radio Station, doing business as Bowl-A-Way Lanes, owned and operated the bowling establishment on Beacon Street in the City of Laurel, Mississippi, on February 25, 1960, at which time the appellant was injured while bowling in appellee's bowling alley; that the front entrance to the building faced towards the east and front on Beacon Street; that the lanes of alleys in which the bowling balls are rolled is in a general northeasterly and southeasterly direction and that located approximately in the center of the bowling establishment from the east to the west and immediately to the rear or south of the lanes in which the bowling was done was a control center or cashier's stand, at which center the score sheets for bowling were obtained and the participants paid their fees for bowling. The concourse is approximately twenty-one to twenty-two feet in width and runs in an easterly and westerly direction the entire width of the building which is 142 feet. The concourse is used by bowling participants or any person who might be in the building as a general thoroughfare or walkway. To the south of the central stand in the south end and center of the building was located a snack bar or concession stand at which the appellee dispensed food and beverages to the general public who came into the bowling establishment. The snack bar or concession stand opened onto the concourse of the bowling alley and is not closed off from the rest of the bowling places. The spectators and bowling participants were allowed on the date in question to purchase food and beverages and to carry them all about the bowling alley; that this was a new bowling establishment and had been in operation five days. The appellant, on the night of February 25, 1960, entered about 8:30 p. m. to engage in bowling as a paying customer. The place was extremely busy on this date and particularly during the evening when the appellant was injured. The appellant bowled for some time and then moved over to another lane. At one time he pulled his bowling shoes off and went back up near the concession stand. The appellant was injured sometime between 11 and 12 o'clock in the evening. He was called to the appellee's control stand by someone he claimed was one of the employees for the purpose of paying for several lines or games of bowling which he had bowled previously that evening with other participants. On the west side of the control stand, for a period of approximately from about 9:30 o'clock until the plaintiff was injured, there was a large amount of liquid substance on the floor near the appellee's control stand. The appellant's testimony was to the effect that on the floor of the concourse around the cash stand and snack bar and down towards the approach to the bowling lanes 'there were a lot of cups lying around and drinks spilled on the floor and water pretty near all over the place.' This substance was on the floor all the time that he was in the bowling establishment. After he paid for his right to bowl further, he attempted to bowl in Lane 7, but there was some liquid or something on his shoe which kept him from sliding his foot and he fell and was injured. He observed the liquid substance on the floor at the cash stand and central desk and it appeared to be the same type substance as that found on his shoe after he fell. When he was carried from the building on a stretcher after the injury, he observed the liquid substance on the floor at the cash stand and control desk and it appeared to be the same type substance as that found on his shoes after he fell. Several witnesses corroborated the testimony of the appellant as to the condition of the floor.

The appellee's testimony was to the effect that they knew that there was debris on the floor, that the cups were thrown there by the general public but this was back of the control center; that all this debris was back away from the cashier's stand but there was none of it in the actual bowling area. The president, the manager and the superintendent of the appellee's establishment were all there at the time that the appellant was injured and they knew about the condition and testified that it was clean from the cashier's stand to the actual bowling area.

The appellant was a professional bowler, his average score at one time being over 197 which was necessary in order to be a professional. He had run a bowling establishment in another state for over eleven years. He knew that he should take care of his shoes and what to do in the care of his shoes.

This is a close case.

From the foregoing facts the question before the Court is, was the appellant, Elias, the sole and proximate cause of his injury; and as an experienced bowler, did he assume the risk involved in the game of bowling or was he guilty of contributory negligence? Appellant's only assignment of error is that the lower court erred in granting a peremptory instruction to the appellee.

In considering the motion for a peremptory instruction 'everything must be considered as proved which evidence established, either directly or by reasonable inference, against party requesting peremptory instruction.' Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842; Keith v. Yazoo and M. V. R. Co., 168 Miss. 519, 151 So. 916; Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274; Columbian Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 163 So. 454; Farish v. Canton Flying Services, 214 Miss. 370, 58 So.2d 915; Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Maguire v. Carmichael, 240 Miss. 732, 128 So.2d 581.

Since appellant was an invitee, it was the duty of the appellee to have and keep its bowling house in a reasonably safe condition. Petterson v. Sayers, d/b/a The Conrad Hotel, 223 Miss. 444, 78 So.2d 467; Western Union Tel. Co. v. Blakely, 162 Miss. 854, 140 So. 336. On the applicability of the doctrine of assumed risk, incurred risk, etc., 65 C.J.S. Negligence Sec. 174, p. 849 states: 'Accordingly, it has been held to be the rule, generally referred to as the doctrine of assumption of risk, and sometimes referred to as the doctrine of 'incurred risk,' or 'taking the risk or hazard,' or 'running the risk,' that one who...