Mortimer v. Martin

[496]

AGEE, J. pro tem.

*

Plaintiff appeals from a judgment entered upon an adverse jury verdict in an action for damages for personal injuries.

The respondents (Reed, McCauley and Richard) are partners doing business as Reed and McCauley Food Mart and are the lessees of the premises in question. The owner of the premises, defendant Olive B. Martin, was granted a non-suit and no appeal was taken from the judgment entered in her favor. Nonsuits were also granted to the sublessees operating various departments and no appeal was taken from the resulting judgments in their favor.

Appellant is a wholesale grocery salesman. On December 3, 1951, about 11:30 a. m., he parked his car at the rear of the store adjacent to the market and started to enter the market by way of the rear doorway. This entry way was customarily used by tradesmen and appellant had been using it at least once every three weeks for over 10 years. A concrete strip runs across the threshold and forms the bottom part of the doorsill. It is 2% inches wide and its surface is 1 inch above the level of the alley, which adjoins the rear of the premises. At its inside edge it drops down

2%

inches to the top of a concrete ramp or walkway which is 5 feet long and which descends to the level of the market floor. The total incline from the top to the bottom of the ramp is approximately 10 inches and the maximum deviation from the horizontal is less than 2% inches to one foot. The ramp was not equipped with a handrail.

Appellant testified that as he was walking down the ramp, he slipped and fell. In his complaint for damages for the injuries thereby sustained, appellant alleged in his charging paragraph: “That defendants were negligent in the following particulars: (a) In keeping an incline entrance to a store in a steep and slippery condition where it was known to defendants that said entrance was commonly used by business invitees and business visitors, (b) In failing to keep said incline clear of mud and water and other slippery substances and permitting water and mud to remain thereon in such a condition as to cause it to be dangerous to persons walking over and upon it. (c) In failing to give plaintiff and other persons any signal or warning of the slippery and dangerous condition of the incline at the time, (d) In failing, after defendants knew the dangerous condition of the in