Seymour v. Gulf Coast Buick, Inc., 42650

• Decision Date: 06 May 1963
• Docket Number: No. 42650,42650
• Parties: Hollis J. SEYMOUR v. GULF COAST BUICK, INC.
• Court: Mississippi Supreme Court

Page 706

152 So.2d 706

246 Miss. 805

Hollis J. SEYMOUR v. GULF COAST BUICK, INC.

No. 42650.

Supreme Court of Mississippi.

May 6, 1963.

Morse & Morse, Gulfport, for appellant.

P. D. Greaves, Gulfport, for appellee.

McELROY, Justice.

This is an appeal from the judgment of the Circuit Court of Harrison County, Mississippi wherein the defendant, appellee, was granted a peremptory instruction to find for defendant, after the plaintiff's, appellant's, and the appellee's case had been presented.

The appellant is a 63-year-old man. He is a painter by trade, and, before his accident on February 10, 1962, had been engaged as a painter for seventeen years. He worked for five years at the Edgewater Gulf Hotel and twelve years at the Keesler Air Force Base at Biloxi, Mississippi. At Keesler he earned approximately $170 every two weeks. Prior to the injury, his health had been excellent. He had been able to go anywhere and do anything and climb up ladders. After the accident, he was unable to do any type of work which he had done prior to it, except very light work that did not require him to climb a ladder.

On the date of his injury, appellant had taken his automobile into appellee's establishment and had driven it to a point approximately ten feet from a pit used by appellee to align automobile tires. The appellee's employee aligned the appellant's automobile tires and backed the care off the aligning mechanism. The appellant then requested the appellee to check his carbureter and the appellant backed away from the car. He slipped on some oily or slippery substance which he stated was oil. His feet went out from under him and he fell backwards into a pit some four feet deep, striking his head on a motor. There was nothing to warn the plaintiff of the existence of the pit, nor were there any safeguards or rails around the pit. As a result of his injuries, the appellant incurred doctors' bills in the amount of over $1,400.

The appellant's testimony is to the effect that he drove his car in and requested that the car be fixed. They drove the car up on the pit on which they aligned the wheels, and when they drove the car back, appellant requested them to do some other work on it. The floor was slippery from oil, which caused him to slip into the pit. There was no barrier or guard to prevent him from falling in. His feet slipped on the oil, that is, 'over I went', he stated. The oil was on the floor just a short distance from the pit. From the appellant's testimony, there was no doubt that there was oil on the floor and that the pit was unguarded by rail or any kind of chain or sign indicating danger. Seymour, the appellant, testified:

'My feet went out from under me and I knew there was grease or something there that caused my feet to go out from under me.' There was not any rail or anything around the pit to warn him that the pit was there. 'There was nothing in the world--just a plain hole in the floor, flat floor.'

On cross-examination the appellant stated, 'The only thing that I can say is this: I went in and got out of my car and the boy took my car and put it on the truing rack as they call it, to align the tires up, and he rolled it off, then he was there underneath the hood working on something and I was standing there by him and said to him to check my carbureter while he was doing that. Then I backed off, and when I did I slipped down, I went just like I said in that pit; it was from slickness from a slippery floor, a little dampness of oil, I seen it, definitely. I seen it; I absolutely slipped on oil. On a slippery floor with oil on it, that's what I did.' He absolutely saw it before he slipped. He didn't know how long it had been there on the floor. He slipped and overbalanced and fell into the pit from the south side of it. He stated: 'I do definitely know that I slipped into oil, I will say that, that my feet were slippery and I slipped into oil and slipped over into that, and balanced over and went into the pit. There was enough there that most anybody could have slipped in it, as far as that goes. If I did not notice it, I didn't have any intention of slipping in oil, but I did step back from the car and stepped in it and slipped. I would definitely say that.' He never noticed the oil or grease on the floor until he stepped into it.

The appellee's testimony was to the effect that they had a janitor that went around cleaning up the floor around the pit, and he testified that he did this around seven-thirty in the morning, and that the accident happened about eight o'clock. The janitor did termine which, in fact, is true. F. W. Woolfloor at the time Seymour slipped or not.

From the above testimony of Mr. Seymour, and from the record, the appellee contends that Seymour made conflicting statements and completely reversed himself in his own words. In the case of Dearman v. Partridge, 239 Miss. 611, 124 So.2d 680, the Court said:

'* * * even when the statements are conflicting it is a jury question to determine which, in fact, is true. F. W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447; Byrd v. Masonite Corp., 218 Miss. 731, 67 So.2d 724; Thompson v. Thomas, 219 Miss. 552, 69 So.2d 238; Posey v. Weatherspoon, 227 Miss. 189, 85 So.2d 908; Meridian Hatcheries, Inc. v. Troutman, 230 Miss. 493, 93 So.2d 472; Johnson v. Richardson, 234 Miss. 849, 108 So.2d 194.'

We believe that conflicting testimony is a question for the jury to determine.

It must be accepted as proof that the appellant was at a place where he had a right to be; that while he was aware of the existence of the pit, there were no safeguards around it to prevent him from falling; that the proximate cause of his slipping and falling was an accumulation of grease or oil on the floor of the garage near the pit; that oil and grease had to be cleaned from the floor daily by a porter; and it is a fair inference to draw from the testimony that on the morning of the accident he missed or overlooked the patch of oil or grease in which the appellant stepped, slipped, fell, and was seriously injured.

In the case of Elias v. New Laurel Radio Station, Inc., Miss., 146 So.2d 558, the Court held:

'In considering the motion for a peremptory instruction 'everything must be considered as proved which evidence established, either directly or by reasonable inference, against party requesting peremptory instruction.' Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842; Keith v. Yazoo and M. V. R. Co., 168 Miss. 519, 151 So. 916; Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274; Columbian Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 163 So. 454; Farish v. Canton Flying Services, 214 Miss. 370, 58 So.2d 915; Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Maguire v. Carmichael, 240 Miss. 732, 128 So.2d 581.

'Since appellant was an invitee, it was the duty of the appellee to have and keep its bowling house in a reasonably safe condition. * * * Western Union Tel. Co. v. Blakely, 162 Miss. 854, 140 So. 336.'

In the case of Patterson v. Sayers, 223 Miss. 444, 78 So.2d 467, the Court held:

'Mrs. Patterson brought this action against Mr. Sayers to recover money damage for injuries she claims to have received when she fell in the hotel lobby of the Concord Hotel in Natchez, Mississippi, which fall, she avers, was the result of the failure of Mr. Sayers, operator of the Hotel, to use reasonable diligence to maintain a reasonably safe place for passage through that lobby. When Mrs. Patterson rested her case the learned trial judge instructed the jury to return a verdict for Mr. Sayers, which was done, and judgment was...