S. H. Kress & Co. v. Sharp

• Decision Date: 03 March 1930
• Docket Number: 28397
• Citation: S. H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So. 650 (Miss. 1930)
• Parties: S. H. KRESS & CO. v. SHARP
• Court: Mississippi Supreme Court

126 So. 650

156 Miss. 693

S. H. KRESS & CO. v. SHARP

No. 28397

Supreme Court of Mississippi

March 3, 1930

Division B

Suggestion of Error Overruled, March 17, 1930.

APPEAL from circuit court of Lauderdale countyHON. J. D. FATHEREE Judge.

Action by Bettie Sharp against S. H. Kress & Co.From a judgment for plaintiff, defendant appeals.Affirmed in part, and in part reversed and remanded.

Affirmed in part, and in part reversed and remanded.

Amis, Dunn & Snow, of Meridian, for appellant.

Plaintiff's case must stand or fall by and upon the specific or particular negligence charged.

Westerford Lumber Company v. Jacobs,132 Miss. 638, 97 So. 187.

A peremptory instruction to the jury to find for the defendant should be given where the evidence failed to prove negligence on the part of the defendant as charged in the declaration.

Hardy v. Masonic Ben. Asso., 103 Miss. 108;Crowly v. Railroad,70 Miss. 343;McFadden v. Buckley,53 So. 351;Flora v. Express Co.,92 Miss. 66;Clark v. Moyse,48 So. 721;Wooten v. Railroad, 89 Miss. 322.

Even though there is a conflict in the testimony if the overwhelming weight of the evidence is in favor of the losing partythe court ought not to permit a judgment to stand against him, and should grant a new trial.

Columbus & G. Ry. Co. v. Buford, 116 So. 817;M. & O. Ry. Co. v. Bennett,127 Miss. 413, 90 So. 113;Clark v. Moyse,48 So. 721;McFadden v. Buckley,98 Miss. 28, 53 So. 351;Fore v. Railway,87 Miss. 218, 39 So. 493, 600;McQueen v. Bostick, 12 Smedes &M. 604;Sims v. McIntyre, 8 Smedes &M. 327;Barbee v. Reece, 60 Miss. 906.

Reily & Parker, of Meridian, for appellee.

It is not for the supreme court to substitute its opinion for that of the jury where there is an issue of fact.

Cotton Mills Product Co. v. Oliver, 121 So. 111.

The necessity of sufficient lights for a stairway to be safe is so manifest that there can be no dispute about the same.

Eaton v. Wallace, 287 S.W. 614;Bailey v. Sticks-Bayer & Fuller Dry Goods Co.,129 S.W. 739;Baldwin v. Hanly,216 S.W. 998;Willoemette Pulp & Paper Co. v. Bonner, 167 F. 116.

There is a duty devolving upon the master to furnish his servant with a reasonably safe place in which to work.This is a positive duty and cannot be delegated . . . In providing a reasonably safe place in which to work, regard must be had to the kind of work required of the servant and the conditions under which it must necessarily be performed.

Limburg v. Central Consumers Company,211 S.W. 746;Warner v. Pittsburg, etc., Co.,220 P. 492;C. & R. Lbr. Co. v. Crane,99 So. 753;Coast Ship Company v. Yeager,81 So. 797;Benton v. Finkbine Lbr. Co.,79 So. 346;Edwards v. Haines-Walker Lbr. Co., 74 So. 284.

Argued orally by Ed. Snow, for appellant, and by Marion W. Reily, for appellee.

OPINION

Griffith, J.

Appellee, who will sometimes hereinafter be referred to as the plaintiff, was an employee of appellant in a retail mercantile store operated by appellant in the city of Meridian.The position held by appellee was that of floor lady, and it was her duty to have, to some extent, a general superintendence over the saleswomen at the retail counters.Among other duties of appellee was that of vigilance to see that the counters were kept supplied, and that, when any particular merchandise should be sold out to see to it that the counter was immediately replenished by the stockmen, and, if the latter were otherwise engaged, it was the duty of the floor lady to go upstairs and bring down in her arms such quantity as could be conveniently carried in this manner.On the 21st day of December, 1927, appellee, while in the discharge of her duties last aforesaid, and while descending the stairway with four dozen bath towels in her arms, fell on the stairway and was injured.She instituted suit alleging that the stairs were unsafe in three particulars: That they were steep, narrow, and dark.After a trial lasting four days, the record of which embraces nearly six hundred typewritten pages, a verdict and judgment was entered in behalf of plaintiff for twenty-five thousand dollars, from which the defendant appeals to this court.

Fifteen witnesses, including plaintiff herself, all being young women who had been employed by appellant, were introduced by appellee on the issue of negligence.Ten of these testified that the stairs were too steep, twelve that they were too narrow, and thirteen that they were insufficiently lighted.None of these witnesses had made any measurements, and their estimates of steepness and narrowness were merely of varying opinion based upon observation.For instance, one of these witnesses, when pressed for an exact estimate of the width of the stairs, placed the width at twenty-one inches, another at thirty inches, and another at thirty-six inches.As to the width of the stair steps or the tread, one witness said they were only four inches; another said they were six inches; another that they were only seven inches; and so on.

Appellant introduced six witnesses who had made actual measurements of these stairs.Five of these witnesses were experienced carpenters, contractors, and builders, and the sixth was the city building inspector.By actual measurements, this stairway was forty-seven inches wide in the clear, the steps or treads were eleven and one-half inches wide, the rise seven and one-half inches; and every one of these practical builders stated that these dimensions and measurements were standard--that is to say, that a business stairway showing these measurements complies in every particular with the standard requirements observed in the architecture of such stairways in general and ordinary practice.No person other than these six witnesses had made any actual measurements, and their testimony as to the actual measurements stands undisputed.Nor did any witness dispute that these measurements were those of a standard stairway in common use everywhere in such establishments.

"The testimony even of disinterested and unimpeached witnesses on the subjects of measurements, distances and the like, which is based merely on memory, estimate or casual observation, must yield to that which is based on actual measurement."1 Moore on Facts, section 415;22 C. J. 738, 739.

We apply and adopt the language of the opinion in McIntyre v. Pittsburgh,238 Pa. 524, 86 A. 300, which was a case wherein appellant had sued for an injury alleged to have been caused by the narrowness and steepness of a flight, of steps, as is the case here.The court said: "It was not contended, nor was there any evidence tending to show, that the steps were out of order in any way.Criticism was directed entirely against the manner in which they were constructed.It was claimed that they were too steep, and that the treads were not wide enough.It was not shown that the method of construction was unusual, or that it differed from the ordinary plan found in such localities.It is the duty of the city to construct and maintain its public ways so that they shall be reasonably safe and convenient for ordinary use and travel.In performing this duty it is bound to use ordinary care and diligence, but it is not bound to provide against the possibility of an accident. . . .There was no eyewitness of the accident, and the explanation given by the plaintiff was by no means clear.There was a hand railing at the side, but she did not remember taking hold of it.While she and some of the witnesses who testified in her behalf found fault with the width of the tread of the steps, yet none of them had measured it, and none of them knew with any degree of accuracy what the width was.They merely guessed at it when they said six or seven inches.And over against these guesses was the clear and positive testimony of the contractor who built the steps, and of the assistant city engineer and the inspector of highways and several other witnesses who knew whereof they affirmed, and spoke from actual knowledge derived from measurements; and these men all said that the steps were broad, being twelve inches in the tread, with an overlap from the step above of not more than an inch.If this was true, the steps were admittedly all that could be desired in that respect.The width of the tread was important from the plaintiff's standpoint; for unless she could show that it was too narrow for safety, her case must fail.She brought nothing more than conjecture upon the part of her witnesses to sustain the point, and as against actual measurements these guesses did not amount to a scintilla of evidence.Where a matter of measurement is important, the 'guesses' or 'belief' of a witness cannot be accepted as against the sworn statements of competent witnesses who give the results of actual measurements. . . .Whatever may have been the occasion of plaintiff's fall, it does not appear to have been chargeable to the plan upon which the steps were constructed and maintained by the city."

It is therefore manifest that the issues on behalf of appellee as to steepness and narrowness are not sustained, and the verdict, if sustained at all, must be referred to the issue of darkness.Of the thirteen witnesses for plaintiff who were introduced to substantiate the charge that the stairway was dark, ten of them testified only in a general way in this respect and solely as a matter of approximate judgment, and of these, two admitted that the light was sufficient if the stairs were carefully used, and another of these thirteen witnesses admitted that the light was equal to that in the courthouse where the case was then being tried, in which connection it is noted that one of the witnesses for the defendant used the same expression by way of comparison.Three of plaintiff's witnesses...