McClusky v. Duncan

• Decision Date: 28 April 1927
• Docket Number: 7 Div. 666
• Citation: 216 Ala. 388,113 So. 250
• Parties: McCLUSKY v. DUNCAN.
• Court: Alabama Supreme Court

113 So. 250

216 Ala. 388

McCLUSKY v. DUNCAN.

7 Div. 666

Supreme Court of Alabama

April 28, 1927

Rehearing Denied June 15, 1927

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action by Cora McClusky, by her next friend, G.B. McClusky, against Frank Duncan. From a judgment for defendant, plaintiff appeals. Affirmed.

E.O McCord & Son, of Gadsden, for appellant.

W.J Boykin and O.R. Hood, both of Gadsden, for appellee.

GARDNER J.

Suit for damages by appellant against appellee, for injuries alleged to have been received while in defendant's storehouse in Gadsden. The cause was tried upon issue joined on counts 7, 8, 10, and 11, and at the conclusion of the evidence the court gave, at defendant's written request the affirmative charge in his favor.

In the storehouse of the defendant was a toilet for the use of the customers. Plaintiff's insistence is that, as a customer in the store on the morning of August 1, 1925, she went into the toilet, which had one window and was equipped with an electric light, and while reaching up to turn on this light her hand came in contact with an uninsulated wire, producing sufficient shock to cause her to involuntarily jerk her hand down with such force as to injure the muscles of her shoulder and cause deformity, though she felt no pain at the time and did not burn her hand. Plaintiff was 19 years of age, and had previously been in this toilet. The light in the toilet was a ceiling light, the socket being fastened to two plates of white procelain nailed to the ceiling, and the bulb screwed into this socket. The wires (which plaintiff insists were in part uninsulated) ran along and were nailed to the ceiling, being connected with the socket. There was no thumb screw to the light, and there is of course no contention that this ceiling light should have a thumb screw. It was controlled by a switch on the stairway, a short distance from the toilet. Of course the light could have been extinguished by unscrewing the bulb, and, if so extinguished, could be again lighted by screwing the bulb in the socket.

Plaintiff states that on both her previous and subsequent visits to the toilet she found the light burning. The light was an ordinary incandescent one of about 40 or 50 watts. There was "no change in the wiring nor the lighting itself nor the bulb" since the occasion complained of, and a few days thereafter defendant went to the toilet with plaintiff and demonstrated turning on the light by merely screwing the bulb. There was no evidence from which it could be reasonably inferred that the lamp or bulb was defective, and, if not burning on this occasion, the only reasonable conclusion follows that it was the result of some one unscrewing the bulb. A number of other lights in the vicinity of the toilet were controlled by the same switch outside the toilet, and these lights, including that of the toilet, customarily burned constantly during the business hours of the day; one employee who had been working at the store since 1917 stating she had found the bulb unscrewed only a very few times. If on this occasion the light was not burning and the bulb unscrewed, defendant is not shown to have had any notice or knowledge thereof, and the store manager insists he received no such notice or report.

From the undisputed proof, therefore, it appears that neither defendant nor any employee had reason to believe the light was not burning as usual on this occasion or was negligent in failing to discover it was not burning, if such was the case.

Though plaintiff states the toilet was dark on the morning of her visit, she testifies there was sufficient light for her to see the electric bulb. The ceiling was not high, and the bulb was well within reach. She did not take hold of the bulb, however, but touched one of the wires along the ceiling leading to the bulb. Testifying as to this question, plaintiff said:

"I think the bulb hangs down from the ceiling about six inches, I reached up beyond it, and got hold of the wires up there, and there wasn't anything to turn it on with."

It appears, therefore, that plaintiff, unfamiliar with such a ceiling light, attempted to turn it on in an improper manner.

The toilet was for the accommodation of defendant's customers, and plaintiff was an invitee. As such, defendant was not an insurer against accident, but it was the duty of defendant to use due care to avoid injuring her--to take such precautions as a man of ordinary prudence would observe under the circumstances. L. & N.R.R. Co. v. Glick, 214 Ala. 303, 107 So. 453. See, also, Birmingham Amusement Co. v. Norris (Ala.Sup.) 112 So. 633. Nor is negligence to be conclusively assumed from the mere fact of an accident and injury. L. & N.R.R. Co. v. Glick, supra; Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257. The duty of care is commensurate with the danger. Wright v. Richards, 214 Ala. 678, 108 So. 610; 20 C.J. 341. "The current supplied for the lighting of incandescent lights is, under ordinary circumstances, of low voltage and comparatively harmless, but many cases have arisen where a person touching or attempting to turn on such a light has received an injurious shock. The accident may be the result of different causes." Curtis on Elec. p. 608.

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