Garing v. Boynton

• Decision Date: 05 November 1931
• Docket Number: 7 Div. 987.
• Citation: 138 So. 279,224 Ala. 22
• Parties: GARING v. BOYNTON ET AL.
• Court: Alabama Supreme Court

138 So. 279

224 Ala. 22

GARING v. BOYNTON ET AL.

7 Div. 987.

Supreme Court of Alabama

November 5, 1931

Rehearing Denied Dec. 17, 1931.

Appeal from Circuit Court, Talladega County; W. B. Merrill, Judge.

Action for damages for personal injuries by James A. Garing against T. D. Boynton and W. H. Boynton, doing business as the Talladega Hardware Company. From a judgment for defendants plaintiff appeals.

Reversed and remanded.

Erle Pettus, of Birmingham, for appellant.

Knox Dixon, Sims & Dixon, of Talladega, for appellees.

BROWN J.

This is an action on the case to recover damages for personal injuries. The complaint on which the case was tried consists of counts 2, 3, 5, and 6. Counts 2, 5, and 6, ascribe the plaintiff's injuries to the negligence of defendants in maintaining an elevator in their store in Talladega, Ala and count 3 alleges that plaintiff's said "wounds, injuries or damages were the proximate consequence and caused by the wantonness and wilfullness of the defendants' servants or agents while acting within the line or scope of their employment."

The defendants' pleas of contributory negligence, numbered 4 and 5, were interposed to counts 2, 5, and 6 only, and appellant's contention that these pleas were applied to the third count and therefore the demurrers thereto were erroneously overruled, is not sustained by the record. These pleas fall within the class where the facts and conduct alleged as constituting contributory negligence do not as a matter of law constitute contributory negligence, but are sufficient to justify an inference of fact that plaintiff's conduct was negligence, and the pleas so characterize it and allege that this negligence proximately contributed to plaintiff's injury and damage. This met the requirements of the rule which was clearly restated in B., R. L. & P. Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, 82, Ann. Cas. 1916A, 543, and reaffirmed in the following cases: Smith v. Louisville & N. R. Co., 219 Ala. 676, 123 So. 57; Mobile Light & R. R. Co. v. Forcheimer, 221 Ala. 139, 127 So. 825. The pleas were not subject to any of the objections stated in the several grounds of demurrer, and therefore the demurrer was overruled without error. Code 1923, § 9479.

And, as observed in the Gonzalez Case, "in the latter case [that is, where the facts alleged do not constitute negligence as a matter of law], the facts being proved, negligence vel non is a question of inferential fact for the jury."

The plaintiff, as the evidence shows, at the time of his injuries, was a salesman for the defendants, who were engaged in operating a hardware store in Talladega, and was paid a commission on the goods sold by him. During all the working days of the week, except Saturday, he performed his work out of the store, but on Saturday he was required to work in the store.

The defendants maintained in their store, a freight elevator, which was located one hundred feet from the front of the store and about twenty feet from the rear; the store building being located in the block with buildings on both sides. The building was two or more stories in height, and the elevator served all of the floors, including the basement, and had an entrance from both the front and rear. On the several floors, not including the basement, the shaft of the elevator was protected by gates which, when the elevator floor was in line with the floor, remained opened, and, when the elevator lifted, the gates automatically closed by means of a latch or trigger which was caused to release by the passing elevator. Attached to the gates by cords which pass over pulleys are heavy weights to aid in lifting the gates and to prevent them falling with too much force when the latch or trigger is released by the passing elevator. Evidence was offered tending to show that by wear these cords would become frayed and this would cause the gates to sometimes hang and prevent them from closing automatically.

That the only natural light shed on the elevator was from the outside windows at the front and rear of the building, and some of this was cut off by shelving, counters, and articles of merchandise kept thereon, enveloping the elevator in semidarkness, of more or less degree, depending upon the condition of the weather, and to aid this situation an electric light located from six to twelve feet from the elevator shaft was provided. This could be turned on and off by a pull cord. The floors were kept oiled with floor oil to allay the dust, and this caused them to turn dark, and the floor of the elevator had become dark by use.

The plaintiff's special line of work was selling and promoting the sale of electrical goods and apparatuses. The electric batteries kept for sale by defendants were located in the elevator shaft on shelves, as some of the evidence tended to show, from four to eight feet from the level of the first floor.

The plaintiff, while in the act of serving a customer, who desired to purchase an electrical battery, as his evidence tended to show, went to the elevator shaft where the batteries were kept, and, finding the gate open, attempted to step upon what he took to be the floor in the elevator, and at the same time taking hold of the gate which stood some six inches above his head, and the gate fell, precipitating him to the bottom of the elevator shaft about fourteen feet, landing on his feet, with the result that one of his legs was broken, the bones in his feet crushed, and suffered other injuries. This occurred on Saturday, and in the course of the performance of his duties under his contract with defendants.

The elevator had been in use nine years, and, as some of the evidence shows, the cords attached to the gates...