Norwood Clinic, Inc. v. Spann

• Decision Date: 16 January 1941
• Docket Number: 6 Div. 657.
• Citation: 240 Ala. 427,199 So. 840
• Parties: NORWOOD CLINIC, INC. v. SPANN.
• Court: Alabama Supreme Court

199 So. 840

240 Ala. 427

NORWOOD CLINIC, INC. v. SPANN.

6 Div. 657.

Supreme Court of Alabama

January 16, 1941

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action for damages for personal injuries by J. T. Spann against the Norwood Clinic, Inc. From a judgment for plaintiff, defendant appeals.

Affirmed.

London & Yancey and Fred G. Koenig, Sr., all of Birmingham, for appellant.

Frank L. Parsons, of Birmingham, for appellee.

FOSTER Justice.

Appellee was plaintiff below and recovered a judgment against appellant for personal injuries, from which this appeal was prosecuted.

The evidence shows that plaintiff was about sixty-four years of age; that he was a cripple from infancy caused by infantile paralysis, but was able to walk with care and the use of a cane. That he worked his way through college, and was a college professor until he retired in 1937.

In March 1938, he was going into the facility of appellant used for a medical clinic to have his eyes examined. In trying to enter the building, he slipped and fell and broke his leg causing injuries of a serious nature. The amount of the verdict was not in any sense excessive. The questions relate to the liability of appellant, including errors claimed to have occurred in the trial.

It is first insisted by appellant's counsel that the evidence of negligence was of such unsubstantial sort as not to be sufficient to support the verdict, nor even to submit the question to the jury.

The door of the entrance was about thirty-eight inches from the sidewalk, and was four inches higher. The span was covered with a cement walkway, which was necessarily an incline extending upward toward the door. This had been in use for several years, and was the main entrance to the clinic. The evidence shows that many thousand people each year walked over that walkway: in 1937 as many as 35,000 patients including many who had received various forms of leg injuries, and some with paralysis, had been helped along this space, and many others not patients. Some evidence of a substantial sort tended to show that by such constant use, the cement walkway was worn slick. This was disputed. Others testified that such use tended to make it slick.

There was evidence that the city laws provided that a ramp should not be inclined more than one inch in height to eight inches in length. The one in question, if a ramp, was one inch to nine and one-fifth inches. And on that basis was within the city rule. But there was also evidence that there was a fall in the proportion of two inches in six inches, extending from near the top, and then flattened out. So that near the top the incline exceeded the specifications, though, over all, it did not. There were no grooves or ridges to help in this aspect of the question.

Plaintiff testified that he was going up this cement walkway, with a cane in his right hand and holding to his brother's arm with his left. That brother had died, and had not given his testimony. He further testified that he was walking carefully and as they approached the entrance his brother reached out to open the door, and while he was doing so plaintiff's feet slipped and he fell at a time when he was making a step: that the slope was slick enough for his feet to slip out from under him: that he fell from that cause, not because his legs gave way, nor because there was any foreign matter on the walkway.

Counsel for appellant argue the question with the admission that plaintiff was in the attitude of an invitee, and that as such appellant owed him the duty to use reasonable care to have said entrance to the clinic in a reasonably safe condition for plaintiff. Farmers' & Merchants' Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406; Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388. This applies to hospitals of this sort. Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443.

This means, we take it, that appellant must be held to have assumed that people of all sorts of ailments and personal infirmities will use this facility. That is its purpose. It is not primarily instituted to accommodate robust, strong, healthy people, nor even those of average normal physique, but the sick and infirm. It should be designed and maintained with that in view, and the reasonableness of its safety must be in respect to such infirm people as was this plaintiff. 45 Corpus Juris 701 (Negligence), section 76; O'Mara v. Hudson R. R. Co., 38 N.Y. 445, 98 Am.Dec. 61; Sheridan v. Brooklyn City R. Co., 36 N.Y. 39, 93 Am.Dec. 490.

The jury should have more latitude in determining its reasonable safety for use of those who are infirm than if the place were designed to accommodate people of average physical condition. The authorities cited above are in accord. We have cases of various circumstances where invitees were caused to slip and fall. Each is decided upon an application of the same principles of law, but as applied to their respective circumstances. Woolworth Co. v. Erickson, 221 Ala. 5, 127 So. 534; Hill Grocery Co. v. Hameker, 18 Ala.App. 84, 89 So. 850.

The circumstances of those cases are not similar to this one to the extent that they are very helpful in this. The burden is on plaintiff to show negligence. Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388; Woolworth Co. v. Erickson, supra.

In Mullen v. Sensenbrenner Mercantile Co., Mo.Sup., 260 S.W. 982, 33 A.L.R. 176, cited by appellant, plaintiff had such an injury in a store entrance with an incline in proportion of one inch to the foot (twelve inches) for five feet from the sidewalk to the store door. It was made of tile and had been there four years with no other accident. There was a small crack of one-eighth to three-sixteenths inch, but filled with cement. Plaintiff claimed her foot caught in this crack and she fell. The court found that the crack was negligible, and that because thousands had passed over it in the four years with no accidents proved conclusively that it was not so slick as not to be reasonably safe.

We are not so sure as to the controlling value of such evidence, assuming it to be admissible. See, Perrine v. Southern B. Co., 190 Ala. 96, 66 So. 705; Mayor, etc., of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; City of Birmingham v. Comer, 239 Ala. 152, 194 So. 498; Hill Grocery Co. v. Hameker, 18 Ala.App. 84, 89 So. 850. The evidence was given without objection in this suit.

The fact that any number of people of different physical condition passed over the place without injury might tend to support a theory that it was reasonably safe for such sort of people. But there is no evidence that any one afflicted in the way in which this plaintiff was, had safely used the walkway in question without ample assistance. There was evidence that patients with fractures of the legs came over it on crutches and were helped in. Plaintiff could probably have been helped in with sufficient aid. It may have been that their safety was due to the extent of their aid, rather than the status of the walkway.

It was the duty of the clinic to anticipate the use of this walkway by those in any manner of affliction, and use due care for them. In this case the probative value of the extent of the use of this place is more in respect to its having thereby become slick than of its safety when used by a cripple. It tends to corroborate the evidence that it was slick and had become so by such constant use.

Other cases of slippery floors are reported in the books, and cited by appellant: Garland v. Furst Store, 93 N.J.L. 127 107 A. 38, 5 A.L.R. 275; Murphy v. Hudson, etc., R. Co., 180 A.D. 585, 167 N.Y.S. 895; Abbott v. Richmond County Country Club, 211 A.D. 231, 207 N.Y.S. 183; Id., 240 N.Y. 693, 148 N.E. 762; Tryon v. Chalmers, 205 A.D. 816, 200 N.Y.S. 362; Id., 240 N.Y. 580, 148...