Evans v. Tanner

• Decision Date: 04 February 1971
• Docket Number: 1 Div. 515
• Parties: Don EVANS, Individually and d/b/a Evans Feed Mill, etc. v. Dean TANNER.
• Court: Alabama Supreme Court

Page 782

244 So.2d 782

286 Ala. 651

Don EVANS, Individually and d/b/a Evans Feed Mill, etc. v. Dean TANNER.

1 Div. 515.

Supreme Court of Alabama.

Feb. 4, 1971.

Rehearing Denied March 4, 1971.

Johnston, Johnston & Nettles and Robert G. Kendall, Mobile, for appellant.

Cunningham, Bounds & Byrd, Mobile, for appellee.

COLEMAN, Justice.

The defendant appeals from a judgment for plaintiff for $10,000.00 in an action for personal injury allegedly sustained by plaintiff as the proximate consequence of defendant's negligence in the maintenance of a place in defendant's feed mill where plaintiff slipped and fell.

Plaintiff alleges that he entered the office of the mill for the purpose of selling corn to defendant, and that upon leaving the office and while on the premises maintained by defendant for the use of persons selling corn and entering and leaving the mill, plaintiff slipped and fell and suffered the injuries complained of.

The complaint is in three counts. In Count One, plaintiff charges that defendant negligently maintained 'said floor at the place where Plaintiff slipped and fell in an unsafe condition for use of customers at said feed mill.'

In Count Two, plaintiff charges that while on 'the walkway' maintained by defendant for the use of persons selling corn to defendant and entering and leaving the mill, plaintiff slipped and fell. Plaintiff charges that defendant negligently maintained 'said walkway adjacent to the place where Plaintiff' slipped and fell.

In Count Three, plaintiff charges that defendant negligently maintained 'said walkway' where plaintiff slipped and fell.

The evidence discloses that defendant operates a mill where corn and other grains, hay, and other feedstuff are ground and mixed so as to become feed for livestock. The floor plan of the main building is rectangular in shape and the dimensions appear to be approximately 100 feet by 50 feet. Onto one end of the main building there is a room which will be referred to as the unloading room. It is about 50 feet long by 20 feet wide. The fifty-foot wall at the end of the main building forms one wall of the unloading room. Twenty feet across from and directly opposite this fifty-foot wall is another wall fifty feet long. These are the two walls of the unloading room. The two ends of the unloading room are not enclosed. There is a roof over the unloading room.

Trucks containing corn and other feedstuff are driven into the unloading room and the contents of the trucks are dumped onto the floor at a place referred to as the pit, which is a rectangular opening about 12 feet long by 7 feet wide. Five metal pipes about 12 feet long are laid parallel across the top of the pit and level with the floor. The pipes are referred to as '4 inch pipes' meaning, we take it, four inches in diameter; but, plaintiff's Exhibit No. 1 appears to show the diameter as three inches. The 12-foot dimension of the pit is parallel with the 20-foot dimension of the unloading room between the two walls, and 8 feet of floor space is left between the two ends of the pit and the two walls. This space between pit and wall is 4 feet plus a few inches at one end of the pit and 3 feet plus a few inches at the other end.

There is space between each of the five pipes which are parallel with each other. The operation seems to be that a loaded truck is driven into the unloading room and the truck is stopped so that the back end of the truck is over the pit. The front end of the truck is then raised by an elevating mechanism so that the contents of the truck slide out the back end and fall onto the pipes and pass through the openings between the pipes down into the pit. There is an auger device at the bottom of the pit which moves the stuff dropped into the pit into the main building where the stuff is ground and mixed.

There is a door in the wall between the main building and the unloading room. It appears from plaintiff's Exhibit 1, the distance between the side of this door and the closest corner of the pit is about five feet.

On the day of injury, prior to going to the mill, plaintiff had telephoned the mill and had been told by defendant's employee, Ward, that defendant would buy a load of plaintiff's corn and for plaintiff 'to bring it on in.' Plaintiff drove his truck loaded with corn to the mill and parked the truck. One or two other trucks were being unloaded ahead of plaintiff. Plaintiff went into the office in the main building of the mill. Plaintiff did not remember which entrance he used in going into the building.

As we understand it, plaintiff did sell his load of corn to defendant. After he had been in the office for a period of time, the trucks ahead of plaintiff were almost finished and it was plaintiff's turn next. He left the office and started to leave the main building through the door in the wall between the main building and the unloading room.

When plaintiff came through the door, a pickup truck was at the pit ready to be dumped. An employee of defendant was feeding hay into the small pit. The employee was standing in the area between the end of the pit and the wall of the main building. Some hay and some bags were in the area between the pit and the wall of the main building.

Plaintiff does not remember whether he stopped or not when he came through the door. He walked across the pit. When he stepped upon the pit his feet slipped and his head hit the pipes. On cross-examination, he testified that when he came out the door he walked straight across the pipes. He did not ask the employee to get out of his way.

Plaintiff was wearing rubber boots. He had been working around his barn 'several hours before' that morning and had walked over a dirt area from his truck into the mill. It was muddy. He does not know whether he got mud on his 'shoes.' He did not know that 'those bars might be slippery.'

Plaintiff had been to the mill several times. He has gone out all other doors of the building except a small door at the other end. When he came out of the door, between the main building and unloading room, he could have turned right and gone out that way, but he would have had to climb over 'a lot of paraphernalia there--sacks and stuff.'

He knew the pit was there. He testified:

'Q You didn't think an iron pipe would be slippery with rubber boots on?

'A I didn't--

'Q You didn't think about it at all, did you; you just came out that door and walked straight across those pipes without looking to the right or left, didn't you?

'A It's the normal procedure with everybody.

'. . .

'Q You had frequently walked across these pipes?

'A I had walked across them.'

Defendant's mill foreman testified:

'Q Mr. Ward, you've fallen in the pit yourself, haven't you?

'A No, sir, I don't believe so.

'Q Trying to walk over it?

'A No, sir, I don't remember it.

'Q You haven't done that; have you walked over the pit?

'A Yes, sir, I have.

'Q Why do you walk over it, because it's more convenient?

'A Well, we not necessarily walk over it, we have to step on the pit sometimes unloading the trucks.

'Q Actually, you've walked over the pit, haven't you?

'A Well, we might have.

'Q Weren't you asked this question: 'Have you ever walked over the pit?' And didn't you answer: 'Yes, sir, I have.', when your deposition was taken?

'A Well, that's what I say, we have to--in carrying on our work there, we have to get on the pit at times--

'Q Yes, sir.

'A--to unload the trucks.

'Q Then you have to get on it when the sides are blocked, don't you?

'A No, the times that we would normally get on it is when there is a truck on there being unloaded and we come up from behind there and stand on the pit.'

I--IV.

Defendant contends that the court erred in refusing affirmative charges, with and without hypothesis, requested in writing by defendant separately and severally to the complaint as a whole and to each of the three counts. Defendant also contends that if this court find that defendant was not entitled to any of the requested affirmative charges, the trial court erred, nevertheless, in overruling defendant's motion for new trial because the verdict is not sustained by the great preponderance of the evidence.

Defendant's argument is that the court erred in refusing defendant's requested affirmative charges for two reasons, to wit:

1. '. . . due to the fact that appellee wholly failed to prove negligence on the part of appellant or'

2. '. . . due to the further fact that the evidence shows without contradiction that appellee was contributorily negligent.'

The evidence as summarized above is, of course, that which is favorable to plaintiff. Aiken v. McMillan, 213 Ala. 494, 106 So. 150, (32--35). It does not appear, however, that there is any material contradiction in the evidence. The contradiction appears in the inferences to be drawn from the evidence. ¹ Plaintiff contends that the evidence supports an inference that defendant was negligent in maintaining the area where plaintiff fell, and defendant contends to the contrary.

The evidence that defendant's employee had told plaintiff to bring the corn to the mill clearly supports a finding that plaintiff had been invited to come to the mill premises for business purposes and was an invitee. We think the evidence supports a finding that plaintiff was in a place included within the scope of the invitation at the time plaintiff fell. Defendant contends that plaintiff was not invited to walk across the pit and was not in an area within the scope of the invitation when plaintiff walked across the pit. We disagree. Plaintiff testified to effect that walking across the pipes was normal procedure and that he had previously walked across the pipes. The testimony of defendant's foreman supports an inference that it was not unusual for people to walk or stand on the pipes.

'The duty of defendant was to use ordinary or reasonable care to keep its premises in a reasonably safe condition. It was not an insurer of the safety of its guests or...