Hertzv.Advertiser Co.

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of AlabamaApr 18, 1918
201 Ala. 416 (Ala. 1918)
201 Ala. 41678 So. 794

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3 Div. 330.

April 18, 1918.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Hill, Hill, Whiting Stern, of Montgomery, for appellant. Rushton, Williams Crenshaw and Steiner, Crum Weil, all of Montgomery, for appellee.


It has been often said by this court that there is a general rule of society crystallized into law, which imposes a duty on the owner or controller of premises on which the public is expressly or impliedly invited to enter, that it shall be so constructed and kept as to be free from traps and pitfalls, and that the owner or controller must respond in damages for all injuries suffered by the public in consequence of a breach of this duty. The proposition was thus formulated by Stone, C. J., which has been repeatedly followed by this and other courts:

"There is a common duty resting on all persons, artificial as well as natural, who own real estate on which the public is expressly or impliedly invited to enter, that it shall be kept free from traps and pitfalls; and, if this duty be neglected, and injury results therefrom to any person, the person suffering by such trap or pitfall may recover damages for the injury. This is a general rule of society, crystallized into law. It partakes of the nature of a public nuisance done or suffered, which inflicts special injury on an individual. To a suit for such injury it is no defense that the injury was not intended. Human conduct must be tested by its known general or ordinary consequences." Montgomery Eufaula Ry. Co. v. Thompson, 77 Ala. 456, 54 Am. Rep. 72.

This rule, however, does not apply to places strictly private, nor to places to which the public are not expected or expressly or impliedly invited to go. The rule also varies as to the liability of owners and proprietors as for constructing and maintaining such premises, and as to the duty the landlord owes to the tenant as to such dangerous premises; but these exceptions and limitations are not important in this case.

We agree with the trial court in this case that the evidence fails to show that the defendant was guilty of culpable negligence in constructing a "trap" or "pitfall" on its premises, within the meaning of the above rule of law. If it was guilty of any negligence, it was as to the maintenance of safe premises, as to those who were on its premises by express or implied invitation, in that it failed to properly light the entrance vestibule, and the entrance into its building at or near the place where the plaintiff fell. The rule of law under which this defendant is to be held liable to this plaintiff, if at all, is thus stated in Shearman Redfield on the Law of Negligence:

"The occupant of land is bound to use ordinary care and diligence to keep the premises in a safe condition for the access of persons who come thereon by his invitation, express or implied, for the transaction of business, or for any other purpose beneficial to him; or, if his premises are in any respect dangerous, he must give such visitors sufficient warning of the danger to enable them, by the use of ordinary care, to avoid it. The extent, however, of his legal obligation is to use ordinary care and prudence to keep his premises in such condition that visitors may not be unnecessarily or unreasonably exposed to danger; and the mere fact that one is injured while on the premises is no evidence of negligence on the part of the proprietor." § 704.

This same rule of law has been announced in the following cases decided by this court:

"The principle is well settled that if an occupier of premises, either directly or by implication, induces another to come upon them, he thereby assumes an obligation that such premises are in a reasonably safe condition, so that the person there by his invitation shall not be injured by them, or in their use for the purpose for which the invitation was extended." Campbell v. Lunsford, 83 Ala. 512, 3 So. 522; Railway Co. v. Thompson, 77 Ala. 457, 54 Am. Rep. 72; O'Brien v. Tatum, 84 Ala. 186, 4 So. 158; Sloss v. Knowles, 129 Ala. 410, 30 So. 584; Lake Shore Ry. Co. v. Rodemer, 139 Ill. 596, 29 N.E. 692, 32 Am. St. Rep. 218; Ala. Steel Wire Co. v. Clements, 146 Ala. 266, 40 So. 971.

The case most in point which we have examined is that of Hoyt v. Woodbury, 200 Mass. 343, 86 N.E. 772, 22 L.R.A. (N.S.) 730, which supports our holding that there is no negligence shown as to the construction of the premises. In that case the affirmative charge was directed for the defendant; there being no question as for failure to properly light. The language is so clear in the opinion, and the facts are so similar, that we quote in part what Justice Rugg said in that case:

"The ruling of the presiding judge, directing a verdict for the defendant, should be supported on the ground that there was no evidence of negligence on the part of the defendant. He owned a lot of land on a slight hillside, and it abutted upon a street which descended the hill. He had a right to improve his real estate in any reasonable way. He chose to maintain upon it a block with two stores separated by an entrance to upper stories. The problem which confronted him in doing this was so to arrange the means of access to these three entrances as to adapt them to the varying grade of the adjacent sidewalk. This could have been done in any one of several different ways. But it obviously must have been done in some way. So long as the present physical configuration of this commonwealth continues to exist, substantially the same difficulties will confront those who undertake to erect structures for the use of the public. Methods may change, and facilities of access may grow better, but the situation of the buildings abutting upon hilly streets will abide. Persons entering this building were charged with knowledge that they were not entering from a perfectly level sidewalk, and that generally the floors of buildings are not of precisely the same elevation as the sidewalk, even where it is level. Customers entering or leaving stores cannot be unmindful of these almost universally prevailing conditions."

Whether or not the vestibule or steps down which plaintiff fell were properly lighted on the occasion in question was disputed, and the question was submitted to the jury. The court nor the jury were not authorized to say or find that there was any negligence in the construction or maintenance of the building or premises, unless it was in the failure to have it properly lighted, on the evening of the accident. The evidence was without dispute that the building, including the part where the injury occurred, was properly equipped with electric lighting apparatus. The only dispute in the evidence was as to whether or not the lights were burning on the occasion of the accident. Plaintiff's evidence tends to show they were not, while defendant's shows that they were lighted. It was therefore open for the jury to find this question either way.

If this issue was found in favor of plaintiff, and that such failure proximately contributed to her injuries, and she herself was not guilty of any negligence which proximately contributed thereto, she would be entitled to recover. On the other hand, if the lights were burning, and the premises properly lighted, then there was no negligence whatever shown on the part of defendant, and, of course, no liability; or, if the plaintiff was guilty of contributory negligence, then she could not recover, though the jury should find that the defendant was guilty of negligence as to the lights. We are of the opinion that the undisputed evidence showed plaintiff to have been guilty of negligence which proximately contributed to her injury, and that the general affirmative charge should have been given for the defendant.

If the premises were properly lighted, then, of course, there was no negligence, except her own; and if they were not properly lighted, she should have been more careful in going out of the vestibule into the main office building. She had no right to assume that the floor of the office building was on the same level as the floor of the vestibule. There was a door between the two apartments, and this of itself was a warning to those entering, who were not acquainted, to ascertain whether the floor to the main building was on a level with the vestibule and the sidewalk, or whether it was reached by ascending or descending steps. She is shown not to have exercised the slightest degree of care to ascertain what was beyond the door which separated the vestibule from the floor of the main office. Her own evidence shows that this door was shut, that she herself opened it, and stepped or walked right through as if the floors were on a level, and fell down the steps in consequence of her own negligence, in failing to ascertain whether or not there were steps or stairs connecting the two floors. We find a number of cases very similar, and in every instance under like conditions the plaintiff has been held to have been guilty of contributory negligence, and it seems to us there could be no doubt about the correctness of the decision. The Court of Appeals of New York in a very similar case said of like conditions:

"The presence of stairways leading either to higher or to lower stories must be expected in hallways, and we know of no reason or custom which justifies one entering a strange house in assuming that the hall will continue at the same level. This short flight of steps constituted no reasonable source of danger to any one who took proper precautions to see where he was stepping. It was in no way similar to a hatchway or elevator shaft, nor even to the usual steep flight of steps leading into a cellar." Brugher v. Buchtenkirch, 167 N.Y. 153, 156, 157, 60 N.E. 420, 421.

The courts of Massachusetts have frequently made similar rulings. A recent decision, after reviewing similar cases, thus summed up the doctrine:

"It is a matter of common observation that in entering and leaving stores, halls, railway car stations and platforms, office buildings, and other buildings and places, and private houses, adjoining surfaces are frequently at different levels, and the difference in level has to be overcome by one or more steps of greater or less height, or by some other device. The same thing happens in the interior of buildings and structures. We cannot think that such a construction is of itself defective or negligent. There is nothing in the nature of things which requires that the floor of a room, which is entered from a hall or corridor, especially in a building like the Tremont Temple Building, should be of the same level as that of the hall or corridor."

The English courts have held to the same doctrine; and so have many other American courts. The Iowa court holds to the same doctrine, and of a similar case it said:

"The fact that a door is there is a warning that it is the means of exit or of entrance from or to some other apartment, and a way up or down stairs, or to a baggageroom, or to a closet; and no one has the right to assume, without knowledge, or its equivalent, the character of the place to which it affords access." McNaughton v. Railway Co., 136 Iowa, 180, 113 N.W. 845.

In speaking of similar arrangements at a railway station, the English court said:

"There was nothing to show that the door and the steps beyond were more than ordinarily dangerous, and it was necessary and proper that something of the sort should be there for the convenient use of the station by the company. It would be difficult so to arrange every part of a station as to render it impossible for careless people to meet with injury." McNaughton v. Railway Co., 136 Iowa, 182, 113 N.W. 846.

It therefore follows that the trial court should have given the affirmative charge for the defendant. It is for this reason, unnecessary to treat separately other assignments of error, insisted upon; if errors, they were necessarily without possible injury.

The proffered evidence of plaintiff to show that others had fallen down the steps was properly disallowed. It was not shown that the conditions were the same; that is, as to lights or absence thereof, so as to render such evidence admissible for any purpose; it had no tendency to show negligence on the part of defendant, or due care on the part of plaintiff. Moreover, in this particular, if the conditions were the same, then it would necessarily appear that the persons who fell were also guilty of negligence.

We find no error, and the judgment of the trial court must be affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.


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