Sandford v. Firestone Tire & Rubber Co.
| Citation | 139 So.2d 916 |
| Decision Date | 06 April 1962 |
| Docket Number | No. 2498,2498 |
| Court | Court of Appeal of Florida (US) |
| Parties | Francis H. SANDFORD, Appellant, v. FIRESTONE TIRE & RUBBER COMPANY, a Corporation, Appellee. |
Bobby A. Webb and J. Hal Conner, Summerlin & Conner, Winter Haven, for appellant.
Paul Ritter, Winter Haven, for appellee.
Appellant Francis H. Sandford, plaintiff below, seeks reversal of judgment on directed verdict for the defendant on the first count of the complaint and reversal of judgment for the defendant notwithstanding a $7,000.00 verdict for the plaintiff on the second count of the complaint. The prime question on appeal pertains to the judgment notwithstanding the verdict.
This is a slip and fall case. The plaintiff lived near a service station owned by the defendant Firestone Tire & Rubber Company. On one of his daily walks to down town Winter Haven the plaintiff was proceeding on the sidewalk with one William Taylor. As they approched the defendant's station the sidewalk in front of them was blocked by a parked truck owned by the defendant. The plaintiff and Taylor proceeded around the truck and onto defendant's paved premises and, while speaking to an employee of the defendant, plaintiff slipped on a 'spot' of oil and fell and sustained painful and costly personal injuries. The parties pleaded the usual issues of negligence and contributory negligence.
The plaintiff did not see the oil spot until after he fell. William Taylor testified that he and the plaintiff were walking together when the plaintiff fell and that he, Taylor, likewise did not see the oil spot until after the plaintiff fell. He stated that he heard someone say that a customer was looking at a lawn mower and had turned it upside down causing the oil to spill out. An employee of the defendant mentioned that someone was supposed to be getting something to clean up the oil. No one was left to guard the area where the oil was spilled, nor was any warning given. This was verified by W. F. Payne, a then employee of the defendant. He testified that a prospective customer turned a used mower over to examine the blade and the oil ran out; that he, the witness, went into the building to get some 'oil dry' to clean it up but that meanwhile, before his return, the plaintiff slipped and fell. There was testimony that the spot of oil was amber or black in color and four to five inches in diameter
The two counts of the complaint were identical except that the first count alleged the dangerous condition to be latent while the second count alleged the same condition to be patent. A verdict was directed for the defendant as to the plaintiff's first count at the close of plaintiff's case, and the trial proceeded on the second count. The trial court took the view that the status of the plaintiff was that of an invitee if the jury should find that the defendant's parked truck blocked the sidewalk and caused the plaintiff to proceed around it onto the defendant's premises. This ruling followed the holding in Virginia Stage Lines v. Spencer, 1946, 184 Va. 870, 36 S.E.2d 522, wherein a bus was parked in such manner as to force children off the highway and onto a concrete area in front of a filling station which the bus line had leased as its terminal. Injuries were inflicted on the children by the defendant's bus and the court held that the children were implied invitees toward whom it was the defendant's duty to exercise reasonable care.
In the instant case, after the plaintiff rested with reference to the second count of his complaint, the defendant moved for a directed verdict and the court reserved ruling. The case was submitted to the jury who returned a verdict for the plaintiff, assessing the damages at $7,000.00. The court thereafter, in ruling on the defendant's pre-verdict motion, entered judgment for the defendant notwithstanding the verdict. The court noted that it is common knowledge that the surface of a filling station area is frequently spotted with oil from motor vehicles which are supplied with oil and gasoline in such installations. 'Persons walking in such areas,' said the court,
The plaintiff's principal points on appeal gravitate naturally to the question that concerns us, viz., whether or not it was error to enter judgment notwithstanding the verdict. There was undoubtedly some evidence tending to show negligence on the part of the defendant. Assuming that the plaintiff was charged with knowledge that service station areas are frequently spotted with oil, did his failure to observe and avoid this particular spot amount to contributory negligence as a matter of law? If so, the judgment must be affirmed; if not, the judgment must be reversed.
The judgment under assault was based upon the rationale of Tweedale v. City of St. Petersburg, Fla.App.1961, 125 So.2d 920; Bowles v. Elkes Pontiac, Fla.1953, 63 So.2d 769; and Andrews v. Narber, Fla.1952 59 So.2d 869. In the first case plaintiff Tweedale was an invitee at a municipal swimming pool and slipped as he was entering the shower room before using the pool. The plaintiff contended that the slippery floor constituted a hidden danger due to the swinging doors at the entrance of the shower room and a lack of warning signs. In affirming the trial court's summary judgment for the defendant, this court observed that the condition of the shower room floor was clearly discernible if the plaintiff had used his ordinary senses:
The next case of Bowles v. Elkes Pontiac Company, supra, involved uneven floor levels which allegedly were not clearly discernible and caused the plaintiff to fall. It was a case of structural design in a mercantile establishment. No extraneous substance or impeding object was involved. The court, reversing its previous position in a close split decision, held that the amended complaint was insufficient to charge liability for what amounted to an integral condition which was plainly discernible. The facts of the case are mate rially distinguishable from the present situation.
Andrews v. Narber, supra, is the third case mentioned as tending to support the judgment appealed. In that case the plaintiff slipped on a wet walkway adjacent to a swimming pool. The court, in sustaining dismissal of the complaint, stated that it was a matter of common knowledge that water is constantly thrown on walks adjacent to swimming pools and that the walks are generally slippery. The court cited 52 Am.Jur., Theatres, Shows, Exhibitions, etc., § 71, for the proposition that the proprietor of a bathing resort is not liable for injury to a patron due to the slippery condition of the floor 'necessarily incident to the use of the place for swimming or bathing purposes.'
Analysis of the swimming pool cases discloses that the courts found no showing of negligence on the part of the defendants. Contributory negligence therefore would seem to have been beside the issue. Each case nevertheless stressed the 'known danger' aspect and concluded that the plaintiff risked and particular danger. Such appears to be the import of the reasoning in those cases. Let us see, then, whether the 'known danger' thesis applies here so as to justify the trial court in taking the case from the jury after verdict and deciding it to the contrary as a matter of law.
It is notable in the swimming pool cases that there was no distraction or diversion caused by the defendant and no danger for the plaintiff reasonably to anticipate other than that which caused the injury. The ...
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