McMurphy v. Pipkin, 3 Div. 660

• Court: Supreme Court of Alabama
• Writing for the Court: GOODWYN; LIVINGSTON
• Citation: 69 So.2d 682,260 Ala. 203
• Parties: McMURPHY v. PIPKIN.
• Docket Number: 3 Div. 660
• Decision Date: 14 January 1954

Page 682

69 So.2d 682 260 Ala. 203 McMURPHY
v.
PIPKIN. 3 Div. 660. Supreme Court of Alabama. Jan. 14, 1954.

Broox G. Garrett, Brewton, for appellant.

[260 Ala. 204] McMillan, Caffey & McMillan, Brewton, for appellee.

GOODWYN, Justice.

Action by appellee, plaintiff below, to recover damages for personal injuries allegedly sustained by her as the result of negligence of an employee of appellant, defendant below, in creating an obstruction on a public sidewalk. There was a jury verdict in favor of defendant. The plaintiff filed a motion to set aside the verdict and the judgment rendered thereon, and to grant her a new trial. This appeal is from the judgment granting said motion.

There were thirteen grounds assigned in support of the motion. The trial

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court, however, in granting the motion, did not specify the ground or grounds on which it was granted. Therefore, if we should find that it was justified upon any of the grounds assigned, the action of the trial court must be here affirmed. Ford v. Sellers, 257 Ala. 404, 405, 59 So.2d 799; Birmingham Electric Co. v. Toner, 251 Ala. 414, 419, 37 So.2d 584; American Mut. Liability Ins. Co. v. Louisville and N. R. Co., 250 Ala. 354, 361, 34 So.2d 474; Lindsay Products Corporation v. Alabama Securities Corporation, 247 Ala. 662, 663, 25 So.2d 852.

The complaint alleges that 'the plaintiff was walking in a southerly direction on the paved sidewalk of South Main Street in the City of Atmore, Escambia County, Alabama, said sidewalk being a public thoroughfare in said city; that when she reached a point on said sidewalk opposite and adjacent to 'The Sweet Shop', a restaurant operated by Will J. Sharpless, one William Stotts, an agent, servant or employee of the defendant W. J. McMurphy and who was then and there acting in the scope of his employment and in the lime of his duties on behalf of McMurphy's Dairy, suddenly, negligently and with great force opened a screen door which opened outwardly from said Sweet Shop on to said sidewalk and thereby caused said screen door to strike the plaintiff with such force as to knock her off of said sidewalk and cause her to fall to the street which is at a level considerably below said sidewalk and to suffer the injuries hereinafter set out.'

The defendant interposed to the complaint the following plea:

'4X. That the Plaintiff was guilty of negligence which contributed to her injury for in this, that at the time the plaintiff approached the door to the Sweet Shop the same was open and visible for a sufficient length of time to enable her to abserve said obstruction, and the plaintiff then and there was engaged in opening or closing an umbrella and walked into said door, which by the use of due care, she would have observed and could have avoided, and thus suffered the injuries complained of.'

[260 Ala. 205] Plaintiff demurred to this plea on the following grounds: that 'no facts are set out showing that there existed any danger which the plaintiff was negligent in not apprehending'; that 'said plea seeks to fasten upon the plaintiff a duty to see that a sidewalk is safe for travel'; that 'a pedestrian may presume that a...