Louis Pizitz Dry Goods Co. v. Harris

• Decision Date: 17 December 1959
• Docket Number: 6 Div. 416
• Citation: 118 So.2d 727,270 Ala. 390
• Parties: LOUIS PIZITZ DRY GOODS COMPANY v. Mary D. HARRIS.
• Court: Alabama Supreme Court

Page 727

118 So.2d 727

270 Ala. 390

LOUIS PIZITZ DRY GOODS COMPANY v. Mary D. HARRIS.

6 Div. 416.

Supreme Court of Alabama.

Dec. 17, 1959.

Rehearing Denied March 24, 1960.

Sadler, Sadler, Sullivan & Herring, Birmingham, for appellant.

Berkowitz, Lefkovits & Paden, Birmingham, for appellee.

LAWSON, Justice.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, Mrs. Mary D. Harris, on June 30, 1956, when she slipped and fell upon the sidewalk in front of the store of the defendant, Louis Pizitz Dry Goods Company, at 1821 Second Avenue, North, in the City of Birmingham.

The jury returned a verdict in the amount of $10,000. Judgment was entered accordingly.

Upon the filing by the plaintiff of a remittitur of all damages in excess of $7,000 the defendant's motion for a new trial was overruled. A final judgment in the amount of $7,000 was entered and this appeal followed.

The owner of property abutting on a public way is under no common-law duty to keep it in repair. If, through natural causes, it becomes dangerous and persons traveling thereon are injured, the abutting owner is not liable. Texas Co. v. Williams, 228 Ala. 30, 152 So. 47. See City of Birmingham v. Wood, 240 Ala. 138, 197 So. 885; Hill v. Reaves, 224 Ala. 205, 139 So. 263.

An abutting owner, however, owes a duty to the public to do no affirmative act that will create an unsafe condition in the public way fronting his property. It is his duty to use reasonable care to see that the portion of the sidewalk used by him is kept in a reasonably safe condition for pedestrians. Texas Co. v. Williams, supra; Van Antwerp Realty Corp. v. Walters, 253 Ala. 187, 43 So.2d 537.

The general rule seems to be that whatever it is that causes the harm to the pedestrian, if it is the affirmative act of the abutting owner, whether it be from the spilling of melted snow or rain cast on the sidewalk by such owner (Douglas v. Johnson, Sup., 16 N.Y.S.2d 644; Troy v. Dix Lumber Co., 300 Mass. 214, 15 N.E.2d 272; Annotation in 34 A.L.R. beginning at page 409); or escaping oil (Collais v. Buck & Bowers Oil Co., 175 Wash. 263, 27 P.2d 118); or wet vegetable leaves left on the sidewalk (Fadem v. City of St. Louis, Mo.App., 99 S.W.2d 511); or spilled gasoline on the sidewalk (Hanlon v. City of Waterbury, 108 Conn. 197, 142 A. 681); or water mixed with dirt or silt (Cobb v. Salt River Valley Water Users' Ass'n, 57 Ariz. 451, 114 P.2d 904), he is liable for the resulting harm to a pedestrian who was injured while exercising due care.

The defendant does not contend that the law is other than as stated above, but does insist that under the facts as shown by the record before us, it was entitled to the general affirmative charge with hypothesis and that the trial court erred in refusing that charge, which was duly requested in writing.

Defendant says that it was entitled to the affirmative charge with hypothesis for two reasons: First, no proof of negligence on part of defendant. Second, contributory negligence of plaintiff.

In treating of this insistence, we review the evidence in the light most favorable to the plaintiff, for when an affirmative instruction is refused and the party who requested the charge appeals, the entire evidence is viewed in the light most favorable to the opposite party, and where reasonable inferences may be drawn adverse to the party who requested the charge, the action of the trial court in refusing the charge must be affirmed. Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 61 A.L.R.2d 1346, and cases cited.

Mrs. Harris fell on the concrete sidewalk adjacent to defendant's store at about 9 o'clock in the morning on a clear dry day. She was on her way to keep a beauty parlor appointment at defendant's store.

Tendencies of the evidence are to the effect that Mrs. Harris slipped and fell after stepping into a small stream composed of water and ammonia which had been used by defendant's employee in washing defendant's display windows. The stream of water and ammonia ran from a display window across the sidewalk. The stream was approximately one inch wide. It had 'gathered some dust but there was [sic] no objects in the water such as dirt or debris.'

According to the defendant's answer to interrogatories approximately one teaspoon of ammonia was mixed with ten quarts of water to make the solution needed to clean the defendant's display windows.

H. Leroy Thompson, a chemical engineer, testified for the plaintiff. After stating his qualifications and familiarity with water and ammonia, he was asked the following question:

'Now Mr. Thompson, I want you to assume someone is washing--assume on June 30, 1956, a man was washing a window on Second Avenue in Birmingham, Alabama, washing a display window at Pizitz Department Store, and that he used, to wash this window ten quarts of water mixed with one teaspoon of ammonia and that in washing this window, some of that mixture ran from the window, or it spilled where it was mixed, and formed a small stream that ran across the public sidewalk. Do you have an opinion whether or not that stream would cause a public sidewalk, where the stream crossed, to be more slick than other area that were dry?'

After the question was reframed so as to show that the sidewalk was made of concrete, the trial court overruled objections of the defendant interposed to the question and the witness answered: 'The opinion is that the sidewalk was likely to be more slippery, under those circumstances.'

The witness was then asked to state the basis of his opinion. He replied:

'This is a matter of what they call detergent, setting action, in using water to wash any surface that has dirt, grit, or oil, it is customary in every day experience to use some detergent, which may be soap, it may be washing powders, household ammonia, to soften the water or lower its surface tension. The function is to soften the particles on the surface, that you want to wash so that it can be wiped off easily. Soap will tend to do the same thing. It lessens the adherence of any particular particle that might be attached, a sidewalk, or street surface, that would have impurities imbedded into it. That will include coal tar and automobile exhausts, those things make a slippery surface. If the particles are sufficiently softened, or loosened, any solution that has a detergent action will tend to loosen those particles and make them more slippery. It is a similar experience, common in personal experiences. It is like a roadway, when we drive, and when it is dry, it will not be slippery, but when wet, it is slippery. A little bit of water on the road surface will make it slippery.

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'* * * If enough water has passed over a surface, if that water has sufficient detergent action, soap, washing powder, it is likely to wash all of this film off of this surface and to have it relatively clean. A clean wet surface does not tend to be as slippery as a wet surface. If you have just enough water to loosen those impurities, you have your condition of maximum slippery, or minimum friction.'

In Alabama the rule in civil cases...