Seymour v. Gulf Coast Buick, Inc., 42650

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: McELROY
• Citation: 246 Miss. 805,152 So.2d 706
• Parties: Hollis J. SEYMOUR v. GULF COAST BUICK, INC.
• Docket Number: No. 42650,42650
• Decision Date: 06 May 1963

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.

Page 707

[246 MISS 806] Morse & Morse, Gulfport, for appellant.

P. D. Greaves, Gulfport, for appellee.

[246 MISS 807] 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. [246 MISS 808] 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

Page 708

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 [246 MISS 809] 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,...