State-planters Bank & Trust Co v. Gans

• Decision Date: 09 January 1939
• Citation: 200 S.E. 591
• Court: Virginia Supreme Court
• Parties: STATE-PLANTERS BANK & TRUST CO. v. GANS.

200 S.E. 591

STATE-PLANTERS BANK & TRUST CO.

v.GANS.

Supreme Court of Appeals of Virginia.

Jan. 9, 1939.

Error to Circuit Court of City of Richmond; Julien Gunn, Judge.

Action by Horace Gans against the State-Planters Bank & Trust Company to recover for injuries sustained when plaintiff fell on steps in defendant's building. Judgment for plaintiff for $3,500, and defendant brings error.

Reversed, and final judgment entered for defendant.

Argued before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON and SPRATLEY, JJ.

Sinnott & May and V. P. Randolph, Jr., all of Richmond, for plaintiff in error.

Thomas O. Moss, of Richmond, for defendant in error.

HUDGINS, Justice.

Horace Gans, a business man of the city of Richmond, for many years had been in the habit of making three or more deposits a week in the State-Planter's Bank and Trust Company of Richmond. On August 7, 1936, he entered this bank for the purpose of making a deposit. As he went up the three steps leading from the vestibule to the main floor, he sustained a severe injury to his knee. A bank official helped him up the steps, and, after a few minutes, he made his deposit and left the bank limping. That night his knee was put in a cast. Several months later Dr. H. Page Mauck, the attending physician, found that the cartilage around the knee had not healed, and advised an operation. In March, 1937, an apparently successful operation was performed, but his knee was left permanently weak. This action was instituted to recover damages for the injury sustained, and resulted in a verdict for $3,500 which the trial court refused to set aside. To that judgment this writ of error was allowed defendant bank.

The sole exception to the rulings of the trial court is its refusal to sustain the motion of defendant to set aside the verdict on the ground that it was contrary to the law and the evidence. Defendant's assignment of error is based upon three grounds: (1) The evidence is not sufficient to convict defendant of negligence; (2) even if defendant were negligent, the evidence does not show that such negligence was the proximate cause of the injuries to plaintiff; and (3) plaintiff was guilty of contributory negligence as a matter of law.

The negligence alleged is that defendant permitted the rubber mats upon the three marble steps leading from the vestibule to the main floor of the bank to become and remain so "delapidated, deteriorated and worn" that they were not reasonably safe to be used by depositors or other persons entering the bank. There is practically no conflict in the evidence as to the condition of these mats. Even so, in considering the sufficiency of the evidence, we must give plaintiff the benefit of all the evidence and all fair inferences therefrom most favorable to him.

In 1925 the treads to the three marble steps in question were covered with corrugated rubber matting three-sixteenths of an inch thick. The mats were cemented to the marble treads and were so fastened that they could not slip. The corrugation on the rubber had become worn from constant traffic through the years. The matting was somewhat frayed around the edges and thin in some places, with holes the size of a twenty-five or fifty cent piece. One witness for plaintiff said that some of these holes were as long as an inch or an inch and a half. Around these edges and spots the matting had worn to a feather edge, but it still firmly adhered to the tread. It is apparent from the testimony that the depression or thickness of the matting around the spots and edges in question was less than its original thickness, three-sixteenths of an inch, but there is no evidence that the matting' was slick or slippery.

It further appears that more than six hundred persons daily, during husiness hours, had used these steps for eleven years prior to the accident, and that approximately the same number had used them from the day of the accident until March, 1937, when, in the regular course of business, the old matting was removed and replaced by carborundum. During all this time the plaintiff was the only person known to have been injured on the steps.

Defendant was not an insurer of plaintiff's safety. It was charged with the duty to use ordinary care to maintain its banking building in a reasonably safe condition. The facts and circumstances related do...