Walker v. John Smith, T.

• Decision Date: 08 February 1917
• Docket Number: 5 Div. 578
• Parties: WALKER v. JOHN SMITH, T.
• Court: Alabama Supreme Court

74 So. 451

199 Ala. 514

WALKER v. JOHN SMITH, T.

5 Div. 578

Supreme Court of Alabama

February 8, 1917

Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.

Action by Maud Walker against John Smith, T. Judgment for the defendant, and plaintiff appeals. Affirmed.

Suit by appellant (plaintiff in court below) against the defendant for recovery of damages sustained by her in a fall on the sidewalk in front of defendant's mercantile store, or warehouse, in the city of Opelika. Jury and verdict for the defendant.

Count 1 alleged, in substance, that the plaintiff was walking along the sidewalk, and when in front of said warehouse she slipped and fell, the fall being caused by a quantity of cotton seed meal spilled there and causing the damp walk to be slippery and dangerous to pedestrians. Plaintiff alleged that on account of such dangerous condition of the sidewalk she slipped and fell with such violence as to break her elbow and permanently injure her arm, causing her to suffer much pain. It is averred that said injuries were proximately caused by the negligence of the defendant in causing or permitting the cotton seed meal to be and remain on the sidewalk, thereby rendering it unsafe for pedestrians.

Count 2, added by amendment, merely set up a negligent use of the sidewalk in a general way by the defendant, omitting the details set out in count 1. Count 3 charged that "the defendant so negligently used the said sidewalk as to cause the plaintiff to fall," etc., and concluded with the following averment:

"That her said injuries were proximately caused by the willful, wanton, or intentional negligence of the defendant his servants, agents, or employés in so willfully, wantonly or intentionally using said sidewalk as to cause the same to be and become dangerous."

The defendant interposed pleas of contributory negligence 2, 3 and A, each setting up, in substance, practically the same thing, to the effect that at the time plaintiff was injured she was walking along the sidewalk in front of defendant's place of business, which sidewalk was 12 feet wide and over which an awning was extended; a slight rain had fallen, causing the margin of the walk to become damp for a space of about 2 feet; that ample space, to wit, about 10 feet, was left dry and free from the wet cotton seed meal upon which plaintiff could have walked in safety; that the condition of the walk "was open and patent to plaintiff and she saw such condition"; and in another plea alleging in addition that she knew and appreciated the danger of walking on the wet pavement without taking due care, but she nevertheless chose to walk along the narrow margin of the sidewalk which was damp and slippery. Demurrers to these pleas were overruled.

The following charges were refused to the plaintiff:

"(3) If the jury believe from the evidence that Mrs. Walker fell and was injured because of dust or cotton seed meal deposited on the sidewalk by defendant's employés while trucking cotton seed meal over said sidewalk, and she was not negligent in traveling over said sidewalk, she is entitled to recover."

(A) "The court charges the jury that the plea of contributory negligence is not proven in this case."

The following charges were given at the request of defendant:

"(1)If the jury believe from the evidence that the defendant's storing room abutted the sidewalk, and that there was no other way of transporting goods from the drays into the warehouse, and if the jury believe from the evidence that the defendant was conducting said storage room and storing goods in it for mercantile purposes, then the jury is charged that the defendant had a right to truck the cotton seed meal from his dray over said sidewalk into his storage room, if not more than a reasonable time was consumed in trucking said meal across said sidewalk, and if the trucking was done in a reasonably prudent way."

"(4) The jury is charged that the owner of a storehouse or a storing room abutting on a sidewalk in a town or city is, under the law, entitled to the temporary use of the sidewalk in front of his store, provided he consume no more than reasonable time in the moving of such merchandise across the sidewalk into such storehouse."

"(8) The jury is charged that whilst a pedestrian has a right to the entire width of the sidewalk to walk upon, yet if the jury find from the evidence that a part of the sidewalk in this instance was wet and slippery, and this condition was open and apparent to the plaintiff, and if a greater part of it, about 10 feet in width of the sidewalk and running the full front of the building, was dry and safe for pedestrians, it was the duty of the plaintiff to select the dry and safe portion of said sidewalk to walk upon, and if she negligently selected the wet and slippery part to walk on, and such selection and walking upon said slippery part proximately contributed to the injury of the plaintiff, then the plaintiff cannot recover in this suit."

"(E) The jury is charged that no wanton, willful, or intentional misconduct has been shown on the part of the defendant in this case."

James W. Strother, of Dadeville, and Dickinson & Dickinson, of Opelika, for appellant.

R.B. Barnes and N.D. Denson & Sons, all of Opelika, for appellee.

GARDNER J.

It is insisted by counsel for appellant that pedestrians have the right to the use of the public streets, and that this right extends to the entire width thereof (City Council of Montgomery v. Reese, 146 Ala. 410, 40 So. 760; Am. Bolt Co. v. Fennell, 158 Ala. 484, 48 So. 97), and that they attempt to limit or restrict plaintiff to the use of only a portion of the sidewalk. The general rule is well recognized and indeed conceded by counsel for appellee. This rule is subject, however, to certain reasonable and necessary limitations, among them the right of an abutting property owner to use the sidewalk in front of his premises when reasonably necessary for the purpose of loading or unloading his goods and merchandise. Speaking to this question, the Supreme Court of Illinois in Garibaldi v. O'Connor, 210 Ill. 284, 71 N.E. 379, 66 L.R.A. 73, said:

"Abutters upon a public street may use the sidewalk in front of their premises for the purpose of loading and unloading goods,

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