Faulkinbury v. Shaw

• Decision Date: 15 June 1931
• Docket Number: 42
• Citation: 39 S.W.2d 708,183 Ark. 1019
• Parties: FAULKINBURY v. SHAW
• Court: Arkansas Supreme Court

39 S.W.2d 708

183 Ark. 1019

FAULKINBURY v. SHAW

No. 42

Supreme Court of Arkansas

June 15, 1931

Appeal from Miller Circuit Court; Dexter Bush, Judge; reversed.

Judgment reversed, and cause remanded.

Pratt P. Bacon and Will Steel, for appellant.

King Mahaffey, Wheeler & Bryson and James D. Head, for appellee.

OPINION

BUTLER, J.

This is an appeal from a verdict instructed for the defendant by the trial court at the close of plaintiff's evidence in a personal injury suit instituted by Mrs. Effie Faulkinbury against Percy A. Shaw, doing business as Shaw Gas & Plumbing Company, in the city of Texarkana, Arkansas. Mrs. Faulkinbury was injured in the store of appellee by the falling of a kitchen sink upon her ankle on the morning of February 15 1930, while she was in the appellee's place of business as a prospective purchaser of merchandise for sale by appellee. The appellee therefore owed the appellant the duty of exercising ordinary care to maintain and conduct his business so as to avoid injuring her. Alfrey Heading Co. v. Nichols, 139 Ark. 462, 215 S.W. 712. Appellant alleged that the appellee failed in his duty to her in this particular by insecurely attaching a kitchen sink on the inside of his store to an old brick wall with wooden pegs driven therein upon which the sink was suspended, and that because of the negligent fastening of said sink to said wall, the sink fell while appellee was in the exercise of due care, injuring her foot, ankle and leg.

The testimony on the part of the appellant tended to show that the building occupied by the appellee as a tenant, and in which he carried on the business of retailing articles of merchandise, was erected about 45 years before the occurrence resulting in the injury to the appellant; that the walls of the building were made of common or sand brick joined together with mortar made of lime, water and sand without the admixture of cement; that, by reason of the materials used in the construction of the walls, and on account of their age, the walls had become and were soft and "pretty rotten"; that this was the general condition of the walls of this building which had been occupied by the appellee for approximately two years, and that he had had the building repaired while he was a tenant therein; that within the store and along the east wall the appellee had caused holes to be chiseled or drilled in the wall at certain intervals into which were driven wooden pegs, so that the outer ends thereof were flush with the surface of the wall. Into these pegs, hooks were screwed, and upon these hooks, about three feet above the floor, were suspended kitchen sinks in a row extending from the rear of the store to near the front of the building. Along the side of the building by this wall and these sinks was a narrow passageway for the use of the employees and customers. While appellant was in this passageway, in company with one of appellee's clerks, one of the sinks, weighing from 125 to 150 pounds, fell from the side of the wall, striking the appellant and injuring her.

In addition to the above facts, about which there is no dispute, a witness for the appellant, who testified that he was in the building business and had been for a number of years, and who had overhauled the building in question several times for the owner, and had also done some work therein for the appellee, testified that it was usual for sinks to be hung on the walls of the show rooms, and that two dealers in the city of Texarkana beside the appellee had their sinks suspended from the walls of their buildings, but that there was a difference in the brick in the walls of the building in which appellee did business and in modern brick, and also in the construction of the wall; that the brick used then was softer, and the mortar made without cement, while in the more modern buildings the bricks are harder, and cement used in the mortar, making the entire structure denser and more durable. Witness gave his opinion as to the cause of the sink falling, in this way: "I would say that if it fell it was on account of the wall being rotten, and when the pegs were drove in there--just the weight hanging on those pegs--it would naturally pull out, and the brick would shell and the thing would fall down." Witness also stated that not all sinks were supported by the hooks alone; that some dealers, in exhibiting their sinks, put legs under them and some had brackets, and if supports were put under the sinks it was better than supports behind them.

Counsel for the appellee erroneously imply by their argument that the appellee was not liable unless he knew of the unsafe condition of the wall, and that the pegs driven therein could not be expected to hold. This view seems to have been the one adopted by the trial court, for in its direction to the jury it is said: "The court is of the opinion, gentlemen that there isn't any evidence bringing home to the defendant the knowledge that this...