F.W. Woolworth Co. v. Ney

• Decision Date: 14 March 1940
• Docket Number: 6 Div. 639.
• Citation: 194 So. 667,239 Ala. 233
• Parties: F. W. WOOLWORTH CO. v. NEY.
• Court: Alabama Supreme Court

194 So. 667

239 Ala. 233

F. W. WOOLWORTH CO. v. NEY.

6 Div. 639.

Supreme Court of Alabama

March 14, 1940

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action by William Spencer Ney against F. W. Woolworth Company, for damages for personal injuries. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326.

Reversed and remanded.

Kingman C. Shelburne and Bradley, Baldwin, All & White, all of Birmingham, for appellant.

Morel Montgomery, of Birmingham, for appellee.

KNIGHT Justice.

Suit for damages for personal injuries alleged to have been sustained by plaintiff while a customer in a store owned and operated by the defendant in the City of Birmingham, Alabama. From a judgment for plaintiff, the defendant, Woolworth Company, brings this appeal.

It is here argued by appellant that the trial court committed error in refusing to give the jury the affirmative charge in its behalf, which it had duly requested in writing. Other alleged errors are argued, but in the view we take of the case, it is unnecessary to consider the same.

In determining the question whether the court committed error in refusing the general charge requested by the defendant, it becomes necessary for us to consider all the evidence in the case, and that, too, in its most favorable aspect for the plaintiff.

The evidence tended to show that the defendant owned and operated a large store in the City of Birmingham, and employed many clerks, and other employees; that on or about October 1 1938, the plaintiff was a customer in said store, that after purchasing a pair of socks at the sock counter, he desired to go to the handkerchief counter, and he then turned around and started away from the sock counter, and after taking the second or third step, he stepped on a "banana peel," which caused him to slip and fall to the floor and that from this fall he received the injuries catalogued in his complaint. As to the cause of his slipping, and fall upon the floor, we here quote the language of the plaintiff, testifying for himself: "As to noticing anything I stepped on which caused me to fall, I found a banana peel, I pulled it off my foot. It was crushed to a pulp, and lodged right under my left heel, right under here (indicating); and I pulled it off my heel, that is, a colored fellow took his finger and pulled it away from my foot. That peel was black, dark--real dark. I wouldn't say direct black but real dark brown. I wouldn't think it had any yellow spots on it, but real dark brown. That banana peeling appeared to be dirty. When my foot came in contact with that substance it did make a mark on the floor. When I fell--I have the coat, and on the back there is a place about that large on it (indicating); it won't come out, it is still on my coat now after this time. * * * I tell the jury there were marks going two different ways from the position where I fell. I fell with my feet towards the south, and there were marks going, one to the west and one to the southwest. I would say the covering on the floor was linoleum; the color was dark, I would not specify the exact color, but it was dark. I did not see the banana peel, or that condition at any time before I fell."

There was testimony tending to show that the store was well lighted at the time; that the janitor had swept the floors of the store that morning, and again in the afternoon before the accident happened. The accident occurred around five p. m., some two hours after the second sweeping. The accident occurred between the hosiery counter and the toy counter. There is a lunch counter near the rear of the store, some distance from the place where the plaintiff fell. At this lunch counter, the defendant sells lunches, ice cream, "soda drinks," and "banana splits." The diagram of the interior of the store shows that there was an aisle and another counter between this lunch counter and the place where the plaintiff slipped and fell.

There was no testimony tending to show that any of the defendant's servants or employees threw or dropped the banana peel on the floor, or that any of the defendant's employees or servants knew of its presence on the floor prior to the accident; nor was there any testimony tending to...