
    Willie L. IRELAND and James F. Ireland v. LEACH PONTIAC-GMC, INC.
    81-247.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    
      Stephen D. Heninger, of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
    Dick D. Nave of Furner, Boyce & Nave, Bessemer, for appellee.
   ALMON, Justice.

The plaintiffs, Mr. and Mrs. Ireland, brought an action for negligence against Leach Pontiac-GMC, Inc., an automobile dealership in Montevallo. Leach Pontiac answered with a general denial and a defense of contributory negligence on the part of Mrs. Ireland.

The jury returned a verdict for the defendant. Motion for new trial was denied. The only question presented to this Court is whether the trial court erred in refusing to charge the jury on the law of subsequent negligence.

Mrs. Ireland went to Leaeh-Pontiac to get her daughter, who was having her car repaired. Mrs. Ireland parked her car in the service area and walked toward the showroom where her daughter was waiting. There is a sliding door between the showroom and the service area. This sliding door is large enough for an automobile to pass through. Built into the sliding door is a regular pedestrian sized door that can be used when the sliding door is in the down position. The regular sized door does not open entirely to the floor because of a 3V2 to 4 inch wooden strip or door sill which must be stepped over when using the small door. The small door has a large sign which reads “PLEASE WATCH YOUR STEP” followed by a red arrow pointing downward toward the bottom of the door.

As Mrs. Ireland reached this door, or placed her hand on the knob, the service manager called to her and asked how long her car would be in the service area. She answered him and proceeded through the door. As she did, she tripped on the wooden strip, fell, and was injured.

She contends that the action of the service manager in calling to her and diverting her attention as she approached the door was evidence of subsequent negligence, and that the trial court erroneously failed to charge the jury to that effect.

To predicate liability on subsequent negligence it must be shown that the plaintiff was in peril and that the defendant had actual knowledge of plaintiff’s peril and negligently failed to prevent the accident when he had the means available to do so. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978); Scotch Lumber Co. v. Baugh, 288 Ala. 34, 256 So.2d 869 (1972); Hulsey v. Illinois Central R. R. Co., 242 Ala. 136, 5 So.2d 403 (1942).

The service manager did not testify. After reading the record we can find no evidence to indicate that the service manager had actual knowledge that the plaintiff was in peril, if in fact the plaintiff was in peril. For that reason the plaintiff did not meet her burden of proof and therefore the trial judge did not err in refusing to charge the jury on subsequent negligence.

The facts simply do not give rise to a finding of negligence on the part of the service manager. The judgment is therefore affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.

EMBRY, J., dissents, joined by FAULKNER, SHORES and ADAMS, JJ.

EMBRY, Justice

(dissenting):

Respectfully, I must disagree with the holding of the majority that the conduct of Leach Pontiac-GMC on the occasion that Mrs. Ireland was injured did not warrant instructing the jury regarding subsequent negligence.

Under the facts of this particular case, not only should the jury have been instructed about subsequent negligence, but more importantly, that jury should have been given realistic instructions about what constituted contributory negligence under the surrounding circumstances at the moment Mrs. Ireland was caused to fall and be injured. For many years this court has adherred to the rote definition of contributory negligence in this kind of case that simply states: (A) Knowledge of a defective or endangering condition; (B) Appreciation of the danger; and, (C) Failure to exercise reasonable care with regard to the surrounding conditions and circumstances.

It may be gleaned from examination of the many cases decided by this court over a very long period of time that the following would be an appropriate instruction:

“I charge you members of the jury that unless you are reasonably satisfied from the evidence in this case that Mrs. Ireland on the occasion when she fell, had or should have had a conscious appreciation of the danger, if any, to her person from the condition of the premises that existed at the time of her injury, you cannot find her guilty of contributory negligence even though you are further reasonably satisfied from the evidence in this case of the fact, if it be a fact, that she knew or should have known of the condition of the premises that existed at the point where she fell,” or a charge that would read like this:
“I charge you, members of the jury, that even if you become reasonably satisfied from the evidence in this case that Mrs. Ireland, on the occasion complained of in the complaint, had knowledge of the physical condition of the premises at the point where she fell, it does not necessarily follow that she was on that occasion guilty of contributory negligence, for I further charge you that you must be reasonably satisfied from the evidence that, with knowledge of such physical condition of the premises that existed there at the point where she fell on that occasion, she had a conscious appreciation or awareness of the danger to her person, or an opportunity to form such, and I further charge you that before you can find her guilty of contributory negligence, you must further find that she then, at that time, failed to exercise reasonable care for her own safety.”

Among the many cases that I find particularly enlightening in this regard are Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 88 So.2d 825 (1956), and F. W. Woolworth v. Bradbury, 273 Ala. 392, 140 So.2d 824 (1962).

It is a well-settled rule that subsequent negligence is embraced within a complaint which charges simple negligence. For this reason, it is my opinion that Mrs. Ireland was entitled to have the jury instructed regarding subsequent negligence as well as to have it instructed more definitively about contributory negligence under the facts of this case.

In conclusion, it should be noted that the evidence of record shows Mrs. Ireland had never before been to Leach Pontiac-GMC at a time when the sliding door was closed; had never used the small door; was 72 years of age at the time of her injury; turned around away from the door when called to by the service manager; and saw neither the “Exit” sign nor the “Please Watch Your Step” sign.

FAULKNER, SHORES and ADAMS, JJ., concur.  