Supreme Instruments Corp. v. Lehr

• Decision Date: 24 March 1941
• Docket Number: 34278
• Citation: 199 So. 294,190 Miss. 600
• Court: Mississippi Supreme Court
• Parties: SUPREME INSTRUMENTS CORPORATION v. LEHR

199 So. 294

190 Miss. 600

SUPREME INSTRUMENTS CORPORATION v. LEHR

No. 34278

Supreme Court of Mississippi

March 24, 1941

December 23, 1940

Suggestion Of Error Sustained, March 24, 1941.

APPEAL from the circuit court of Leflore county, HON. S. F. DAVIS Judge.

Action by Miss May Lehr against the Supreme Instruments Corporation for injuries sustained when plaintiff, who was an employee of defendant, fell upon steps leading from rest room. From judgment for plaintiff, defendant appeals. Affirmed.

On suggestion of error. Suggestion of error sustained, judgment reversed, and judgment directed.

Affirmed. Reversed, and judgment here for appellant.

H Talbot Odom and W. M. Whittington, Jr., both of Greenwood for appellant.

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 measurements.

1 Moore on Facts, Sec. 415; 22 C. J. 738, 739; S. H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A. L. R. 167.

The witnesses for appellee testified that the light in the ladies' rest room burned all of the time, and two of appellee's witnesses frankly admitted that when the door to the rest room was open the light from the rest room would shine directly on the steps and afforded ample light and that it was possible to close the rest room door after the person had left the rest room and reached the floor of the building. It is too plain for argument that there was ample light and that if appellee had used ordinary care she would not have been injured. If the light was dim in the passageway as contended by appellee and if she closed the door before descending the steps, then she should have come down the steps and closed the door afterwards, which she could have done with perfect safety so far as the quantity of light is concerned. She was simply using what she termed an unsafe method when a perfectly safe method was available to her, and, therefore, the reason for her stumbling and falling was her own negligence instead of negligence on the part of appellant.

If there should be any negligence as to the difference in the height of the step and the rise to the rest room floor or the alleged crowded condition of the passageway, same did not contribute in any way to appellee's injury and were not traceable to these alleged conditions. They were in no sense the proximate cause of the accident. But aside from this, these alleged breaches of duty on the part of the appellant cannot be considered, for the reason that there were no such charges of negligence set out in appellee's declaration, and the attempt on the part of appellee to inject these features into the case was a variance from her declaration, and this evidence should have been excluded on appellant's motion to exclude at the close of the trial.

Dyson, Admr., v. Baker, 54 Miss. 24, 30; Dixie Greyhound Lines, Inc., v. Everett, 185 Miss. 458, 187 So. 508.

The negligence charged was not shown to be proximate cause of appellee's injuries.

Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Wilson & Co., Inc., v. Holmes, 181 Miss. 361, 177 So. 24.

Forrest B. Jackson, of Jackson, for appellant.

At the time appellee stumbled and fell she had not left the floor of the rest room. Therefore, the condition of the step had nothing to do with her fall, either as to width of tread or height of riser, or as to guard rails or as to sufficiency of light on the step, since there was but one step.

There was no causal connection between any of the alleged or proven acts of negligence and the resulting injury to Miss Lehr, and therefore she failed to prove the case alleged in the declaration, and the peremptory instruction requested should have been granted.

45 C. J., p. 901, sec. 478, p. 905, sec. 480 and p. 909, sec. 481.

Under the facts in this case, the primary cause and, therefore, the proximate cause of the injury received by Miss Lehr was her stumbling and falling from the well-lighted floor of the rest room, and the condition of the step, the lack of a guard rail or the insufficiency of light outside and apart from the place at which she stumbled and fell were only links in chains of circumstance and not at all even concurrent causes of the resulting injury.

Billingsley v. I. C. R. R. Co., 100 Miss. 612, 56 So. 790, 791; L. & N. R. R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; I. C. R. R. Co. v. Wright, 135 Miss. 435, 100 So. 1; Wilson & Co., Inc., v. Holmes, 180 Miss. 361, 177 So. 24.

The verdict and judgment are contrary to the overwhelming weight of the credible evidence.

Newton v. Homochitto Lbr. Co., 162. Miss. 20, 138 So. 564; M. & O. R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Pan American Life Ins. Co. v. Jennings (Miss.), 155 So. 429; Miss. Power Co. v. Stiglets (Miss.), 158 So. 907; G. & S. I. R. R. Co. v. Blaylock (Miss.), 166 So. 373; Graves v. Johnson, 179 Miss. 465, 176 So. 256; Thomas v. Williamson, 185 Miss. 83, 187 So. 220.

W. M. Montjoy and Alfred Stoner, both of Greenwood, for appellee.

The case of S. H. Kress Co. v. Sharp, 126 So. 650, 156 Miss. 693, 68 A. L. R. 167, is on all-fours with, but much weaker than, the case in hand and is largely decisive of the case at bar.

The testimony ranges with reference to the lighting all the way from "very dim" and "twilight" as expressed by the witnesses for the plaintiff to "dim" as expressed by the witnesses for the appellant. As was said by Judge Griffith in the Kress case, "The quality of light or darkness is an issue which, of course, cannot be reduced to a mechanical exactitude by means of measurements taken under standard mechanical instrumentalities and must at last be determined by means not so certain as that of actual measurement."

S. H. Kress Co. v. Sharp, 126 So. 650, 156 Miss. 693, 68 A. L. R. 167.

If the contention of Mr. Perkins, witness for appellant, is correct that the floor of the rest room was thirteen inches above the concrete floor of the building and that the steps introduced in evidence are the genuine steps, then the step-down was only four and a half inches for the first step, and eight and seven-sixteenths inches from there to the floor would be just as confusing as if each stepdown were eight and seven-sixteenths inches. In other words, in either event the step would be non-standard as shown by the undisputed proof. It is a matter of common knowledge that people habitually take steps that they are accustomed to take, and where unaccustomed steps are to be taken ordinary care would require that extra-ordinary caution be observed.

Practically every accidental injury could be avoided by extraordinary caution, but the law requires only that ordinary care be exercised by the servant. The law also requires of the master ordinary care and if he is found guilty of any negligence, then the servant is entitled to recover, which situation could only be taken care of by the asking of a comparative negligence instruction. Counsel argue to the effect that if Miss Lehr were guilty of any contributory negligence she would not be entitled to recover. In this they are absolutely in error because Mississippi has long since abolished the contributory negligence rule by passing the comparative negligence statute.

The fact that appellants contend that two grabs at the door would be necessary in order to be safe is a practical admission of danger and hence an admission of at least some negligence on the part of the defendant.

Other analagous cases in addition to the Kress case are:

Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798; Miss. Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896.

Knowledge of servant of defect does not preclude recovery.

Brooks v. Oil Co., 76 Miss. 874, 25 So. 479.

The rule relative to the duty of the master to furnish the servant a safe place to work is different from the rule relative to invitees, licensees and trespassers.

Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798.

The master's duty to furnish the servant a safe place to work is absolute and cannot be delegated.

Masonite Corp. v. Lochridge, 163 Miss. 364, 141 So. 758.

Going to rest room is still within course of employment.

39 C. J. 280; Parkinson Sugar Co. v. Ryler (Kan.), 34 Am. St. Rep. 123; Ryan v. Fowler, 82 Am. Dec. 315; 18 R. C. L. 583; Birmingham Rolling Mill Co. v. Rockhold (Ala.), 42 So. 96.

Appellant having itself introduced the evidence which it now complains of as a variance and having failed to explicitly raise the question in the lower court cannot complain in this court and really could not have complained in the lower court because itself introduced the evidence of which it complains.

Stonewall Life Ins. Co. v. Cooke, 165 Miss. 619, 144 So. 217; Greer v. Bush, 75 Miss. 575; Knox v. Henderson, 160 Miss. 476, 135 So. 214; Am. Brick Co. v. Meadow, 161 Miss. 549, 137 So. 488.

Beyond all question Miss Lehr's foot was on the step at the time that she fell. One foot was still on the floor of the rest room and the other foot down on the step. Inasmuch as the "proximate cause" portion of Mr. Jackson's brief is based upon a clear misinterpretation of the evidence, it necessarily shows that he is in error on this point. And even if he were not in error and if he were correct in stating that she first stumbled by dragging her heel on the edge of the rest room floor, the jury still had the right to consider whether the stumble was superinduced by the insufficiency of light or by having to "duck" around the towel rack or by having to drag the door or by the fact that she was leaving a lighted room going into a darkened passage before her eyes had become adjusted to the dark and whether she could have...