Ensley Holding Co. v. Kelley

• Decision Date: 08 March 1934
• Docket Number: 6 Div. 453.
• Citation: 158 So. 896,229 Ala. 650
• Parties: ENSLEY HOLDING CO. v. KELLEY.
• Court: Alabama Supreme Court

158 So. 896

229 Ala. 650

ENSLEY HOLDING CO. v. KELLEY.

6 Div. 453.

Supreme Court of Alabama

March 8, 1934

Rehearing Granted June 28, 1934.

Further Application for Rehearing Withdrawn Feb. 6, 1935.

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by Lee A. Kelley against the Ensley Holding Company, for damages for personal injuries. From a judgment for plaintiff defendant appeals.

Reversed and remanded on rehearing.

Evidence that elevator passenger slipped on old black banana skin held insufficient for jury as to operator's negligence in not discovering its presence.

The following question was propounded by plaintiff to witness Dr Sherrill, the overruling of objection to which is made the basis of assignment of error 17:

"Now, Doctor, I want to ask you a hypothetical question based on facts which you can assume as true. If you are informed as true that this man had at that time a traumatic injury causing some injury to the lower part of the body in the region of the lower spine, and that following that injury he had the condition which you saw of partial paralysis, and that at that time the man was about fifty-eight years old, and that prior to that time he had been in good health, and that since that time he had several days of paralysis in the stage which you saw, followed by a couple of months in which he had difficulty in the movement of his legs, and that now, approximately two years after the accident he still has a partial paralysis or impediment in his walking, and that part of that paralysis remains and has remained continuously, in a man of his age, will you tell the jury whether or not in your judgment, based on that hypothesis of fact, that condition will to some extent be with him during his natural life?"

John T. Batten and W. B. Harrison, both of Birmingham, for appellant.

Harsh, Harsh & Hare, of Birmingham, for appellee.

BOULDIN Justice.

The action is for personal injuries.

The first question presented on this appeal is the refusal of the affirmative charge to defendant.

The alleged injuries are claimed to have resulted from a fall in a passenger elevator operated by defendant in an office building, known as the Ramsay-McCormack building in the city of Ensley. Without dispute plaintiff was at the time using the elevator in going to an office in the building for business purposes.

It is settled by the law of this state that in such case the plaintiff was an invitee, who, on entering the elevator, became a passenger, due the same degree of care for his safety as in cases of common carriers of passengers by railroad, street car, or motorbus.

While not an insurer, the law imposes the high degree of care commensurate with such relation, generally stated to be the highest degree of care known to careful, diligent, and skillful persons engaged in such business. Morgan v. Saks, 143 Ala. 141, 38 So. 848; Johnson v. Hopkins, 213 Ala. 492, 105 So. 663; O'Rourke v. Woodward, 201 Ala. 267, 77 So. 679; Montgomery & Eufaula Railway Co. v. Mallette, 92 Ala. 209, 9 So. 363; Birmingham Railway, Light & Power Co. v. Gray, 196 Ala. 42, 71 So. 689; Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604; Tippecanoe Loan & Trust Company v. Jester, 180 Ind. 357, 101 N.E. 915, L. R. A. 1915E, 721; Mitchell v. Marker (C. C. A.) 62 F. 139, 142, 25 L. R. A. 33.

The burden of proof is on plaintiff in such cases to show the defendant or its servants were guilty of some negligence, a want of this degree of care, as the proximate cause of the injury. Atkinson v. Dean, 198 Ala. 262, 73 So. 479.

When this may appear from the conditions attending the accident under the doctrine of res ipsa loquitur is not here important.

Plaintiff attributes his fall to the presence of a piece of banana peel on the floor of the elevator, causing him to slip and fall upon the floor as he was leaving the elevator at his destination, the sixth floor of the building.

The plaintiff's testimony as a witness on his own behalf was direct and positive as to the presence of the piece of banana peel, and clearly supported a conclusion that his fall was caused by stepping on same, and consequent slip of his foot. While defendant's evidence negatives the presence of the banana peel, this was an issue for the solution of the jury.

Appellant insists there is a want of evidence to support a reasonable inference of negligence of the operator in causing or permitting the banana peel to be and remain on the floor of the elevator.

There is an absence of evidence that the operator actually knew of its presence, and no direct evidence of when it came to be there.

The only persons in the elevator at the time of the accident were the plaintiff, another passenger, Mr. Hankins, witness for defendant, and the elevator boy, not examined by either party. One other passenger had come from the first to the third or fourth floor on this trip. It is insisted that, for aught appearing, the banana peel may have been dropped by this unknown passenger, and the operator cannot be charged with negligence in failing to discover and remove such inconspicuous menace to the safety of passengers within so short a space of time and while engaged in operating the elevator.

There was no evidence that the passenger mentioned did or did not have a banana in the elevator. No witness is questioned on this point. The plaintiff testifies it was a piece of "old black banana skin."

The dimensions of the floor were 4 feet 1 inch by 6 feet 2 inches. It was properly lighted.

In opening and shutting the elevator door for passengers, the operator could readily see the space they must use in coming in and going out. In view of the high degree of care imposed by law, it cannot be said as matter of law there was no duty to see this space was clear of dangers when inviting passengers to go out or come in.

Whether this old banana peel, if such there was, was out in the floor where plaintiff's right foot first came in contact with it in making his second step in leaving the rear of the elevator, is not at all clear. With equal probability, perhaps, the old banana peel may have been stepped on at the back, adhered to the shoe, and caused to skid when stepping forward.

In either event, it was for the jury to determine the question of negligence vel non in allowing a condition of danger to passengers at the time.

In Atkinson v. Dean, 198 Ala. 262, 73 So. 479, 481, cited by appellant, the court, in reviewing Alabama Gt. S. R. R. Co. v. Johnson, 14 Ala. App. 558, 71 So. 620, where a passenger in alighting from a passenger coach tripped and fell over a valise projecting into the aisle, observed there was no evidence to show how long the valise had obstructed the aisle, and it did not appear any servant of defendant was in the car at the time of the accident. Said this court:

"Had it been shown that some servant of defendant was in the car at the time, instead, on the contrary, on the outside, assisting passengers, it might properly have been left to the jury to say whether the servant was negligent in not being alert enough to discover the obstruction before plaintiff tripped over it. We do not consider that the bare fact of a dress suit case being in the aisle makes out a prima facie case."

These quoted words differentiate the Atkinson Case from the present one.

Clearly the case of City of Bessemer v. Whaley, 187 Ala. 528, 65 So. 542, involving the negligence of a municipality because of the presence of a banana peel on a sidewalk, is not analogous.

Counsel, with commendable diligence, have presented cases from other jurisdictions bearing some analogy to the instant case.

Of these, Goddard v. Boston & M. R. R., 179 Mass. 52, 60 N.E. 486, was the case of a passenger slipping on a banana peel on a station platform in the city of Boston. The place was a car length from where the passenger had alighted, with many persons on the platform. The court said the banana peel may have been dropped within a minute by one of the persons leaving the train, and that it was unnecessary to go further to decide the case for defendant.

In Anjou v. Boston Elevated Ry. Co., 208 Mass. 273, 94 N.E. 386, 21 Ann. Cas. 1143, the court differentiates the Goddard Case, supra, in that it appeared the banana peel was old and gritty, showing signs of having been trampled over, etc. This latter case is the more analogous to the one at bar, if plaintiff's version be true.

Davis v. South Side Elevated Railroad Co., 292 Ill. 378, 127 N.E. 66, 10 A. L. R. 254, applied the rule of ordinary care, differing from that here applicable, and held the mere fact that a passenger slipped on a banana peel on a stairway leading to defendant's station, in the absence of evidence of knowledge of its presence, or that it had been there sufficient time for notice to be implied, would not sustain an action.

Benson v. Manhattan Ry. Co., 31 Misc. 723, 65 N.Y.S. 271, was the case of a passenger slipping on a banana peel on a stairway leading to a street railway station. There was no evidence of how long the banana peel had been there. The court stated for all appearing it might have been thrown there immediately before by some passenger with no notice to defendant, and to hold defendant liable would make it an insurer of the safety of passengers.

None of these cases deals with a case where the dangerous condition was in the immediate presence, in a very small space, under the eye of the agent of defendant charged with the duty of admitting, transporting, and discharging passengers in the vehicle under his control.

The elevator boy is by force of his employment the agent of defendant in conserving the safety of passengers against hazards of this class. We do not think...