Ten Ball Novelty & Mfg. Co. v. Allen

• Citation: 51 So.2d 690,255 Ala. 418
• Decision Date: 05 April 1951
• Docket Number: 6 Div. 142
• Parties: TEN BALL NOVELTY & MANUFACTURING CO. et al. v. ALLEN.
• Court: Supreme Court of Alabama

Page 690

51 So.2d 690

255 Ala. 418

TEN BALL NOVELTY & MANUFACTURING CO. et al. v. ALLEN.

6 Div. 142.

Supreme Court of Alabama.

April 5, 1951.

London, & Yancey and Geo. W. Yancey, all of Birmingham, for appellants.

Taylor, Higgins, Windham & Perdue, of Birmingham, for appellee.

STAKELY, Justice.

Mrs. Rosalie Allen (appellee) brought this suit against Ten Ball Novelty & Manufacturing Co. and against Allen's Record Bar (appellants) for personal injuries which she is alleged to have sustained while, as a customer, she was in the store operated by them. The suit is based on the alleged negligence of the defendants in their failure to provide her with a reasonably safe place to walk in their place of business. Both of the foregoing concerns are alleged to be partnerships composed of Nathan Allen, Clarence Allen, Louis Allen and Joseph Allen. Louis Allen is the husband of the plaintiff.

The defendants pleaded the general issue and contributory negligence in short by consent. There was verdict and judgment for the plaintiff. A motion to set aside the verdict and judgment and to grant the defendants a new trial was overruled by the court. Thereupon this appeal was taken.

In August 1949 four brothers, Clarence Allen, Nathan Allen, Louis Allen and Joseph Allen, were partners and the owners of the Ten Ball Novelty and Manufacturing Company and as such partners were engaged in operating the business known as Allen's Record Bar, located at the corner of 2nd Avenue and 18th Street North in the City of Birmingham, Alabama. In this place of business they offered goods for sale to the general public. The goods offered for sale included toys and hose for women. There were two entrances to the store for use by customers. One of these entrances was on Second Avenue and the other on 18th Street. The store fronted approximately 25 feet on Second Avenue. The store was arranged in two sections. In the front part of the store was the record bar and toys. In the back of the store was operated a juke box business. The general public was not invited into the part of the store where the juke boxes were stored and the plaintiff was not in this part of the store when she was injured.

The front part of the store was so arranged that it extended back about 50 feet from Second Avenue, from which point it then formed an L shape which extended to the 18th Street entrance. The plaintiff entered the store by way of the 18th Street entrance on the occasion of her alleged accident.

The store was equipped with asphalt tile floor laid in blocks. The company which had installed the floor had recommended that the floor be used a little while before it was waxed. The entire floor had been cleaned, waxed and highly polished several days before the plaintiff fell. This was the first time the floor had been waxed.

The plaintiff fell in the L shape portion of the store at a point about 10 or 15 feet from the 18th Street entrance to the store. In this L the defendants had children's sporting goods behind some showcases. In addition thereto they displayed some wheel goods (bicycles, wagons and tricycles) on the floor. These wheel goods had been moved when the floor was waxed and after the floor was waxed they had been placed back at this point on the floor. These wheel goods had remained there on the floor on display from the time that they had been placed back until the day the plaintiff fell.

The plaintiff fell in the store late in the afternoon. About noon that day or perhaps a little earlier the wheel goods had been removed from the floor where they had been displayed and were redisplayed in the window of the store. After the wheel goods were so moved, the place on the floor where they had been was not swept or cleaned up. The plaintiff slipped or fell on that part of the floor where the wheel goods had been displayed. The wheel goods had been displayed there for several days and trash had accumulated there. The defendants had opened some packages of dolls and some excelsior and waxed papers were on the floor there. The pieces of waxed paper were small, smaller than an inch in length and narrow like straw but some of them were 6 or 7 inches long. They were in plain view on the floor but a customer entering from the street could not see them until about five feet away on account of them being in the L. They could be seen as soon as one turned the L.

When the floor was waxed on the occasion prior to the accident self polishing wax was used. This was the first time the floor had been waxed after being laid. The floor was first cleaned, asphalt tile powder being used. It was then rubbed with steel wool and dried with rags. After it was dry, the wax was applied. George Walker applied the wax. He was recommended for this work by the company which installed the floor. According to him this was the first coat of wax to be applied to the floor and 'a heavy coat, a real heavy coat' was put on. Also according to him this made the floor 'real slick' when it dried. On a new floor when a heavy coat of wax is put on it makes the floor 'real slick.' Asphalt tile when waxed is more slippery than rubber tile. In comparing rubber tile with asphalt tile the defendant's witness Morris Bloomenthal (the president of the company which installed the floor in the store of defendants) said: 'Asphalt tile has little give and as a result when waxed it becomes somewhat slipperier than a rubber tile.' He also said it was 'right' that when an asphalt tile floor is waxed, it gets slick without buffing it with a machine. Morris Bloomenthal also testified that if wheel goods such as bicycles and tricycles were stored over a portion of the floor after it had been waxed and it was dry and not used by customers walking over it, when the wheel goods were removed the floor where they had been would have retained a lot of its sheen. According to him when such a floor is not walked on it will retain its sheen, but when it is walked on grit and dust will give it a non-skid element and people won't slip so much.

The floor was well lighted by means of flourescent lights. Plaintiff entered the store by means of the regular 18th Street entrance provided for customers. She entered the store for the purpose of purchasing some hose. She saw Clarence Allen there in the store and walked towards him, as it was customary for members of the family to make purchases from one of the members of the firm. She was looking ahead and not down at her feet when she proceeded into the store. As she was walking along and as she was approaching the place where she later fell, she saw some paper or bits of dirt scattered generally over an area of five or six feet square there in the rear section of the store. This was the area from which the wheel goods had been removed earlier that day. As she proceeded towards her brother-in-law, she stepped over certain parts of strips of paper and dust but she could not say whether she had stepped into certain parts of it. She was walking normally. In order to have avoided all of the paper she would have had to tiptoe through it. When she was a few feet away from her brother-in-law her foot slipped out from under her and she fell to the floor. After she had fallen and as she was getting up she saw some shredded papers--excelsior type--some waxed paper and some newspaper there on the floor in the place where she had fallen. She had not seen that before she fell. She was wearing shoes with medium heels at the time. As a result of the fall she was bruised about the thigh and sustained a fractured left arm. She testified that the floor at the point where she slipped and fell was slick.

Assignments of error are based on the refusal of the court to give the affirmative charge for the defendants on their request, the ruling of the court in connection with other written charges requested by the defendants and the action of...