Supreme Instruments Corporation v. Lehr

• Decision Date: 24 March 1941
• Docket Number: 34278.
• Court: Mississippi Supreme Court
• Parties: SUPREME INSTRUMENTS CORPORATION v. LEHR.

1 So.2d 242

190 Miss. 600

SUPREME INSTRUMENTS CORPORATION v. LEHR.

No. 34278.

Supreme Court of Mississippi

March 24, 1941

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

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

ALEXANDER Justice.

This case was heard by this Court on a former occasion, resulting in an affirmance by a divided court of a judgment of the lower court in favor of the plaintiff. 199 So. 294. Upon suggestion of error a reargument was heard before this Court in banc, there being three members of the Court who, because of absence and change in personnel, had not participated in the former decision.

In view of the considered judgment of the Court that the suggestion of error ought to be sustained, we refer to the former majority opinion for a statement of the relevant facts as being adequate and fairly presenting the theory of plaintiff. A mere summary thereof should be sufficient here.

Plaintiff was an employee of defendant, and was injured when attempting to step from a lavatory or rest room, constructed as a separate unit inside its manufacturing establishment, where she was employed. The floor of the rest room was no less than eighteen inches higher than the main floor, and access thereto was effected by use of a step which almost equally divided this height. In other words, the step in question was eight and seven-sixteenths inches high, and its tread was ten and seven-sixteenths inches wide. The remaining distance to the floor of the rest room was, therefore, approximately nine and nine-sixteenths inches. The step itself was before the trial court, and is before this Court for examination. Despite an unwillingness of plaintiff's counsel to concede the identity of the step in question, we are amply justified in accepting same as authentic.

An examination by us of this step reveals no structural defects. It is sound in construction and free of any latent or concealed defects. The record fails to disclose that it was insecurely fastened either to the floor or to the structure of the rest room into which it allowed access. The disparity in the height of the two risers-amounting to approximately one and one-eighth inches-could not be seen as a factor in the plaintiff's injury, even though such disparity be deemed ponderable. As shown, the plaintiff fell as she was emerging from the door of the rest room. Her testimony regarding the exact cause of her injury is not clear as to whether her heel caught upon the rest-room floor or upon the first step down. We must, however, here assume, favorably to her contention, that she tripped upon the step itself. Such assumption necessarily makes irrelevant the height of the first riser from the main floor to the step, since the fall originated in some cause located no lower than the first step. This narrows the issue of negligence insofar as the step is concerned to the inquiry whether a jury may be permitted to denounce as negligence the maintenance of a step with a tread of ten and seven-sixteenths inches with a riser of nine and nine-sixteenths inches. In passing upon such question, other factors are relevant, including the fact that the edge or nosing of the rest-room floor projected one inch above the tread, thus probably reducing its usable width when used in descent; the fact that such step was sound and secure in construction; and the circumstance, not adequately heretofore emphasized, that it was a step to a rest room. This last element, while not implying a relaxation of the substantive rule requiring the master to use reasonable care, does stress that the care to be exercised here was only to furnish a step which, under the circumstances, was reasonably safe. The step does not have to be absolutely safe; it need not be reasonably safe, provided the master has used reasonable care to make it so. Meridian Grain & Elevator Co. v. Jones 176 Miss. 764, 169 So. 771. In adjudging reasonable care and reasonable safety, we must keep in mind that reasonableness must be defined in terms of an expectation that the servant will exercise reasonable care in using the place or way. Newell Contracting Co. v. Flynt, 172 Miss. 719, 729, 161 So. 298, 743. This is particularly true in cases where injury is caused by missing one's step. City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, 122.

There is nothing complicated about the step; there should be no intricacy in the rules of law applicable thereto. "In an action at law based on negligence, the question of negligence vel non is for the determination of the jury, unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge." City of Greenville v. Laury, supra. Standards of construction are useful only for comparison. Deviations from such standards constitute negligence only when they constitute deviations from the standards of reasonableness. Even in the construction of steps where the nature, purpose, or extent of their use should require conformity to accepted standards, it is universally conceded that so long as such steps are of usable dimensions the controlling consideration is not the height nor tread of the particular step, but the maintenance of a reasonable ratio between the riser and the tread which recognizes the pacing cadence of the average person. The testimony in this case indicates that the sum of the tread and riser should approximate eighteen inches. Such total was in fact twenty inches, unless the one-inch projection of the rest-room floor be deducted from the width of the tread, in which event the total would be nineteen inches.

In Pastrick v. S. S. Kresge Co., 288 Mass. 194, 192 N.E. 485, expert testimony fixed the proper sum of tread and riser at seventeen and one-half inches. Yet such sum as applied to stairs upon which plaintiff fell was approximately twenty and three-eighths inches. Although such construction was denounced by expert witnesses as being "not a good form of construction", the appellate court upheld a finding for the defendant, using the following language: "The court is not ignorant of common devices and common dangers, and no admission or expert opinion can establish liability where common knowledge shows that there was no danger so substantial that a reasonable man in the position of the defendant would have anticipated injury and guarded against it." See also Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8; Toscani v. Quackenbush Co., 112 N.J.L. 173, 170 A. 212; Stark v. Franklin Simon & Co., 237 A.D. 42, 260 N.Y.S. 691; Dickson v. Emporium Mercantile Co., 193 Minn. 629, 259 N.W. 375; Boyle v. Preketes, 262 Mich. 629, 247 N.W. 763, 765. In the last named case the Court said: "It has long since been recognized that falling downstairs, where the mishap was not imputed to unknown or concealed defects, belongs to that class of ordinary accidents which ought to be imputed to the carelessness or misfortune of the sufferer."

In reversing a judgment for plaintiff who was injured in slipping upon a standard type of linoleum floor though highly polished, this Court said in ...