Hertz v. Advertiser Co.

• Decision Date: 18 April 1918
• Docket Number: 3 Div. 330
• Citation: 201 Ala. 416,78 So. 794
• Parties: HERTZ v. ADVERTISER CO.
• Court: Alabama Supreme Court

78 So. 794

201 Ala. 416

HERTZ v. ADVERTISER CO.

3 Div. 330

Supreme Court of Alabama

April 18, 1918

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by Mrs. S. Hertz against the Advertiser Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Hill Hill, Whiting & Stern, of Montgomery, for appellant.

Rushton Williams & Crenshaw and Steiner, Crum & Weil, all of Montgomery, for appellee.

MAYFIELD J.

It has been often said by this court that there is a general rule of society crystallized into law, which imposes a duty on the owner or controller of premises on which the public is expressly or impliedly invited to enter, that it shall be so constructed and kept as to be free from traps and pitfalls and that the owner or controller must respond in damages for all injuries suffered by the public in consequence of a breach of this duty. The proposition was thus formulated by Stone, C.J., which has been repeatedly followed by this and other courts:

"There is a common duty resting on all persons, artificial as well as natural, who own real estate on which the public is expressly or impliedly invited to enter, that it shall be kept free from traps and

pitfalls; and, if this duty be neglected, and injury results therefrom to any person, the person suffering by such trap or pitfall may recover damages for the injury. This is a general rule of society, crystallized into law. It partakes of the nature of a public nuisance done or suffered, which inflicts special injury on an individual. To a suit for such injury it is no defense that the injury was not intended. Human conduct must be tested by its known general or ordinary consequences." Montgomery & Eufaula Ry. Co. v. Thompson, 77 Ala. 456, 54 Am.Rep. 72.

This rule, however, does not apply to places strictly private, nor to places to which the public are not expected or expressly or impliedly invited to go. The rule also varies as to the liability of owners and proprietors as for constructing and maintaining such premises, and as to the duty the landlord owes to the tenant as to such dangerous premises; but these exceptions and limitations are not important in this case.

We agree with the trial court in this case that the evidence fails to show that the defendant was guilty of culpable negligence in constructing a "trap" or "pitfall" on its premises, within the meaning of the above rule of law. If it was guilty of any negligence, it was as to the maintenance of safe premises, as to those who were on its premises by express or implied invitation, in that it failed to properly light the entrance vestibule, and the entrance into its building at or near the place where the plaintiff fell. The rule of law under which this defendant is to be held liable to this plaintiff, if at all, is thus stated in Shearman & Redfield on the Law of Negligence:

"The occupant of land is bound to use ordinary care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. The extent, however, of his legal obligation is to use ordinary care and prudence to keep his premises in such condition that visitors may not be unnecessarily or unreasonably exposed to danger; and the mere fact that one is injured while on the premises is no evidence of negligence on the part of the proprietor." § 704.

This same rule of law has been announced in the following cases decided by this court:

"The principle is well settled that if an occupier of premises, either directly or by implication, induces another to come upon them, he thereby assumes an obligation that such premises are in a reasonably safe condition, so that the person there by his invitation shall not be injured by them, or in their use for the purpose for which the invitation was extended." Campbell v. Lunsford, 83 Ala. 512, 3 So. 522; Railway Co. v. Thompson, 77 Ala. 457, 54 Am.Rep. 72; O'Brien v. Tatum, 84 Ala. 186, 4 So. 158; Sloss v. Knowles, 129 Ala. 410, 30 So. 584; Lake Shore Ry. Co. v. Rodemer, 139 Ill. 596, 29 N.E. 692, 32 Am.St.Rep. 218; Ala. Steel & Wire Co. v. Clements, 146 Ala. 266, 40 So. 971.

The case most in point which we have examined is that of Hoyt v. Woodbury, 200 Mass. 343, 86 N.E. 772, 22 L.R.A. (N.S.) 730, which supports our holding that there is no negligence shown as to the construction of the premises. In that case the affirmative charge was directed for the defendant; there being no question as for failure to properly light. The language is so clear in the opinion, and the facts are so similar, that we quote in part what Justice Rugg said in that case:

"The ruling of the presiding judge, directing a verdict for the defendant, should be supported on the ground that there was no evidence of negligence on the part of the defendant. He owned a lot of land on a slight hillside, and it abutted upon a street which descended the hill. He had a right to improve his real estate in any reasonable way. He chose to maintain upon it a block with two stores separated by an entrance to upper stories. The problem which confronted him in doing this was so to arrange the means of access to these three entrances as to adapt them to the varying grade of the adjacent sidewalk. This could have been done in any one of several different ways. But it obviously must have been done in some way. So long as the present physical configuration of this commonwealth continues to exist, substantially the same difficulties will confront those who undertake to erect structures for the use of the public. Methods may change, and facilities of access may grow better, but the situation

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