
    Marguerite W. MILLER et al., Plaintiffs and Appellants, v. NEW AMSTERDAM CASUALTY COMPANY et al., Defendants and Appellees.
    No. 1098.
    Court of Appeal of Louisiana. Third Circuit.
    May 28, 1964.
    Rehearing Denied June 17, 1964.
    
      T. C. McLure, Jr., and William M. Ford, Alexandria, for plaintiffs-appellants.
    Franklin & Keogh, by Charles W. Franklin, Baton Rouge, for defendants-appellees.
    Gold, Hall & Skye, by George B. Hall, Alexandria, for defendants-appellees.
   HOOD, Judge.

This is an action for damages instituted by Jasper N. Miller and his wife, Marguerite W. Miller, against J. W. Lewis, Jr.; his wife, Mrs. Dorothy Jackson Lewis; the House of Fashion, alleged to be a partnership composed of Mr. and Mrs. Lewis; and the liability insurer of Mr. Lewis, New Amsterdam Casualty Company. Plaintiffs allege that Mrs. Miller slipped and fell on snow and ice which had accumulated on a private walkway leading from the public sidewalk to the front entrance of the House of Fashion, a beauty shop which was being operated by defendants, Mr. and Mrs. Lewis. Mrs. Miller claims damages for personal injuries which she sustained as a result of this fall. Mr. Miller claims damages based largely on medical expenses incurred by him and loss of wages resulting from his wife’s injuries. On the day of the trial an exception of no cause of action was filed in behalf of Mrs. Lewis and the House of Fashion, which exception was maintained and the suit was dismissed as to these defendants. After trial on the merits, judgment was rendered by the trial court in favor of the remaining defendants, Mr. Lewis and New Amsterdam Casualty Company, rejecting plaintiffs’ demands and dismissing the suit. Plaintiffs have appealed.

Subsequent to the lodging of the appeal in this court, and shortly before the date scheduled for argument of the case, plaintiffs filed a motion to remand the suit to the trial court for the purpose of taking additional evidence on the issue of quantum, plaintiffs alleging as a basis for the motion that since the trial of the case they had discovered new and additional medical testimony relating to the injuries which had been sustained by Mrs. Miller. That motion, together with the issues raised by this appeal, are now before us for determination.

The evidence establishes that an accident occurred in Alexandria, Louisiana, as alleged by plaintiffs at about 1:20 p. m. on January 12, 1962. The weather on that date was extremely cold. On January 9, the temperature dropped to a low of 17 degrees and snow and sleet fell during the day. The records of the United States Weather Bureau show that a total of 1.4 inches of snow fell on that date. On January 10, temperatures ranged from 10 to 21 degrees, with one inch of snow remaining on the ground. On January 11, temperatures ranged from 9 to 23 degrees. And, on January 12, the date of the accident, the temperature dropped to 5 degrees, but gradually increased during the day until it reached a point somewhere between 32 and 34 degrees by the time the accident occurred. Snow and ice covered the ground in the Alexandria area during this entire four-day period.

Mrs. Miller was a school teacher in Alexandria, but school had been dismissed on Tuesday, January 9, because of the extremely cold weather, and the schools did not reopen until Monday, January IS. Mrs. Miller had remained at her home from January 9 until Friday, January 12, because she felt that it was “unsafe to walk and to drive” due to the snow and ice on the ground. She had an appointment at the House of Fashion, a beauty shop, as was her weekly custom, at 1:30 p. m. on January 12. Her daughter drove her to the beauty shop, arriving at about 1:20 p. m., and parked the car on the side of the street directly in front of the shop. A public sidewalk runs parallel to the street in front of this place of business, and a privately owned concrete walk runs from this public sidewalk to the front door of the House of Fashion, the front of that building being situated about 30 feet from the sidewalk.

As Mrs. Miller alighted from the car she noticed that the private walk leading from the street to the House of Fashion, as well as the lawn on either side of that walk, was completely covered with ice and snow. She knew that ice and snow were slippery and that it was dangerous to walk on it, and because of that fact she wore “a pair of those rubber soled Keds with the ridges in the bottom” because she thought it would be less hazardous walking on the snow and ice with that type shoe. After alighting from the car, she walked from the sidewalk on this snow-and-ice-covered private walk toward the beauty shop, but she slipped and fell when she reached a point about half way between the sidewalk and the shop.

Mrs. Miller testified that it was difficult to walk on this private walk “as walking on snow and ice goes.” She knew that on either side of the private walk there was a grass covered lawn, although the grass also was covered with snow and ice, but it did not occur to her that walking on the grass instead of the concrete walk may have been safer. She testified that she fell in a sitting position on the sidewalk and that the fall caused her to suffer painful injuries to her back.

The House of Fashion, although owned by Mr. Lewis, was under the complete management and control of an employee, Mr. Charles Ray McTire. The day before this accident occurred Mr. McTire had slipped and fallen on the same ice-covered private walk, and later that day he attempted to get some of the ice off the front steps of the building, but after making an unsuccessful effort to do so he concluded that he was “fighting a problem” so he discontinued his efforts. Neither Mr. McTire nor defendants put up any signs or notices warning customers of the danger, and they did not put sand, salt or ashes on the walkway before the accident which precipitated this suit occurred.

The trial judge, after analyzing all of the evidence in his excellent reasons for judgment, concluded that defendants, through their agents or employees, had knowledge of the slippery condition of the private walk leading to the front entrance of the House of Fashion, and that they were negligent in failing to attempt to correct that condition. He further concluded, however, that the danger was as apparent to Mrs. Miller as it was to the defendants, that Mrs. Miller nevertheless undertook to walk on the private walkway with full knowledge of the danger, and accordingly, that she is barred from recovery because of her own contributory negligence. Judgment accordingly was rendered in favor of defendants, rejecting plaintiffs’ demands.

We will consider first the issue of whether defendant Lewis, as proprietor of the beauty shop was negligent in failing to exercise reasonable and ordinary care in providing a safe walkway for plaintiff.

Mr. Lewis was the lessee of the premises on which the business known as the House of Fashion was conducted. The owner-lessor of that property is not a party to this action. Mrs. Miller, the injured plaintiff in this suit, was on the leased premises as an invitee or business visitor of the defendant Lewis at the time the accident occurred. Alexander v. General Accident Fire and Life Assurance Corp., La.App. 1 Cir., 98 So.2d 730 (Cert. denied); Grelle v. Patecek, La.App. 1 Cir., 74 So.2d 349 (Cert. denied).

The general rules which are applicable to cases of this type are stated in 65 C.J.S. Negligence, § 50, as follows:

“The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that they are not known to the invitee, and would not be observed by him in the exercise of ordinary care. * * *
“The basis of the inviter’s liability for injuries sustained by the invitee on the premises rests on the owner’s superior knowledge of the danger, and as a general rule he is not liable for an injury to an invitee resulting from, a danger which was obvious or should have been observed by the invitee in the exercise of reasonable care, or from a condition zvhich was as well known or as obvious to the invitee as to the inviter, or which the inviter had no reason to believe would not be discovered by the invitee. There is no duty to warn the invitee of any defect or danger which is as well-known to the invitee as to the ozmer or occupant, or which is obvious or which should be observed by the invitee in the exercise of ordinary care. However, even though the invitee has knowledge of the danger, or the defect is obvious, the duty of the owner or occupant to use reasonable care to keep the premises reasonably safe for invitees remains, and it runs concurrently with the duty of the invitee to protect himself, so that, where the invitee does not fully appreciate the danger or is without fault, the owner or occupant, may be held liable for the injury.” (65 C.J.S. Negligence § 50, pages 541-545, Emphasis added).

This general rule has been approved and applied consistently by the appellate courts of this State. In Levert v. Travelers Indemnity Company, La.App. 3 Cir., 140 So.2d 811, for instance, we said:

“The duty of an occupier of premises to an invitee is to exercise reasonable or ordinary care for his safety commensurate with the particular circumstances involved. The occupier thus owes a duty to avoid reasonably foreseeable danger to his invitee and to keep his premises safe from hidden dangers in the nature of traps or pitfalls in that they are not known to the invitee and would not be observed and appreciated by him in the exercise of ordinary care. This includes the duty of reasonable prior discovery of such unobservable dangerous conditions of the premises, and correction thereof or a warning to the invitee of the danger.
“On the other hand, the occupier does not insure an invitee against the possibility of accident. The invitee assumes all normally observable or ordinary risks attendant upon the use of the premises. The occupier is not liable for an injury to an invitee resulting from a danger which is observable or which should have been observed by the invitee in the exercise of reasonable care, or from a danger which the invitee should reasonably have appreciated before exposing himself to it. (Citations omitted.)” (140 So.2d 813, Emphasis added).

In Sherrill v. United States Fidelity & Guaranty Company, La.App., 3 Cir., 132 So.2d 72, we stated:

“As a general rule, the owner of premises ‘is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the invitee in the exercise of reasonable care, or from a condition which was as well known or as obvious to the invitee as to the in-vitor,’ Alexander v. General Accident Fire & L. Assur. Corp., La.App., 1 Cir., 98 So.2d 730, 734. ‘However, even though the invitee has knowledge of the danger, or the defect is obvious, the duty of the owner or occupant to use reasonable care to keep the premises reasonably safe for invitees remains, and it runs concurrently with the duty of the invitee to protect himself, so that, where the invitee does not fully appreciate the danger or is without fault, the owner or occupant may be held liable for the injury,’ 65 C.J.S. Negligence § 50 p. 545.” (132 So.2d 74, Emphasis added).

In Baker v. Hartford Accident and Indemnity Company, La.App., 1 Cir., 136 So. 2d 828 (Cert. denied), where the plaintiff slipped and fell on the concrete floor of a service station which was unusually slippery because of water and a detergent being used in cleaning the floor, it was held that defendant was not negligent and plaintiff’s demands were rejected because “such compound (detergent) was readily visible to him,” and that “he was obviously aware of the fact the surface of the concrete in the station over which he voluntarily proceeded to walk was wet.” In Lawson v. D. H. Holmes Co., La.App., 200 So. 163, plaintiff slipped on an iron slab situated at the entranceway of the store, which slab had become wet from rain. The court denied recovery assigning as one of the reasons that “Mrs. Lawson knew that it was raining and she is to be charged with knowledge of the fact that one is apt to slip upon any wet surface.” The court further observed that “this accident did not happen in some dark walkway in the store,” but that it occurred “in broad daylight, and there is no pretense that there was anything to prevent any shopper from seeing and knowing precisely what the conditions were.” In the recent case of Burns v. Child’s Properties, Inc., La.App., 3 Cir., 156 So.2d 610 (Cert. denied), plaintiff slipped and fell just inside the door of a supermarket, the floor at that point having become wet by water which had been tracked in by customers. We held that the storekeeper was not negligent in failing to keep the floor dry at that point because a reasonably prudent person of ordinary intelligence would be aware of the fact that the floor would be wet just inside the door, and that under those circumstances the customer is obligated to exercise the degree of care which would be expected of a reasonable and prudent person. In Battles v. Wellan, La.App., 2 Cir., 195 So. 663 (Cert. denied), plaintiff contended that the defendant storekeeper was negligent in permitting water to remain on the tile flooring of the arcade of a building. Our brothers of the Second Circuit, in affirming the trial court, held that the storekeeper was not negligent because the slippery condition of the floor was observable by the plaintiff. The court pointed out that plaintiff, a grown middle-aged woman, “deliberately walked from a wet sidewalk onto the floor of the arcade of defendant’s store, had walked over that same flooring many times before, knew its construction, especially its smoothness of surface, could easily have observed whether there was water accumulated on any portion of it or whether it was wet and slippery.” It then concluded, “We do not think defendant guilty of actionable negligence.”

And, in St. Julien v. Fireman’s Fund Insurance Company, La.App., 3 Cir., 127 So.2d 245, where plaintiff slipped and fell in the alcove at the entrance of a commercial building which had become wet from rain, we held that she was not entitled to recover because there was no negligence on the part of the defendant. One of the reasons why we concluded that defendant was not negligent was that the hazardous condition was observable by a reasonably prudent person of ordinary intelligence. In that connection we said:

“ * * * the circumstance that the entranceway to commercial buildings may be more slippery in wet weather than in dry is not of itself sufficient to constitute actionable negligence on the part of the property owner, when such a condition is observable by a reasonably prudent person of ordinary intelligence and when then the en~ trancezvay can be traversed in safety by the exercise of ordinary care. * * ” (127 So.2d 247, Emphasis added).

Applying the rules set out in the above-cited cases, it appears that the defendant Lewis must be held to be free from negligence, since the slippery condition of the private walkway was not only observable by plaintiff, but it was actually observed by her and she fully appreciated and was aware of the danger before she voluntarily undertook to walk from the public street to the front entrance of the beauty shop.

Plaintiffs, however, in support of their argument that defendants are chargeable with negligence, refer us to five cases which have been decided by the appellate courts of this State, viz.: Dyer v. Stephens Buick Co., La.App., 4 Cir., 125 So.2d 185; Bowers v. Lumbermens Mutual Casualty Company, La.App., 2 Cir., 131 So.2d 70; Richard v. General Fire and Casualty Company, La.App., 3 Cir., 155 So.2d 676; Gilliam v. Lumbermens Mutual Casualty Company, 240 La. 697, 124 So.2d 913; and McMurray v. Aetna Casualty & Surety Company, La.App., 2 Cir., 141 So.2d 898. We think these cases are distinguishable from the instant suit. In the Dyer case, for instance, the court found that plaintiff did not see and could not reasonably have seen the oil spot upon which he slipped before the accident occurred, while in the instant suit there is no question but that the slippery condition of the walk was clearly observable and Mrs. Miller knew that the walk was covered with snow and ice. In the Bowers case, where plaintiff slipped and fell on the floor of a supermarket, the court found that Mrs. Bowers could not and did not observe the damp spot on the floor which caused her to fall. In the Richard case we found that “Although Mrs. Richard could observe that the surface was wet, she could not reasonably appreciate that, because of the unusually slick surface of the porchway, the wetness in this instance produced a slipperiness beyond that reasonably to be anticipated, i. e., a hazard greater than was reasonably observable.” And, the Gilliam and McMurray cases, unlike the instant suit, involved actions by an employee of the lessee against the owner-lessor of the property on which the accident occurred, and each of those cases involved the failure of the owner to repair a defect in the condition of the leased premises. In the instant suit the owner-lessor is not a party defendant and there are no allegations or proof of any defects in the premises on which the accident occurred. For these reasons we feel that none of the cited cases are applicable here.

In the instant suit the evidence shows that the condition of the private walkway was clearly observable by Mrs. Miller or by any other invitee. There were no hidden dangers in the nature of traps or pitfalls which were not plainly visible to her. And Mrs. Miller makes it clear in her testimony that she was well aware of the danger of walking on a concrete walk covered with ice and snow. She purposely had remained in her home for several days prior to the date of the accident because of the danger of attempting to walk or drive on the ice-covered walks and streets, and when she finally did venture out she wore a special type of shoe which she thought would somewhat decrease the danger of slipping while walking on ice; She testified that she knew that “ice is slippery,” and that after she alighted from the car and before she fell, she experienced “the ordinary difficulty” of walking on ice. The evidence shows that the beauty shop had remained open for several days prior to the accident, while snow and ice were on the ground, and that customers kept their regular appointments and entered and left the shop during that period. Although the manager of the beauty shop slipped and fell the day before this accident occurred, there is no showing that anyone else slipped and fell on those premises prior to Mrs. Miller’s fall. The evidence shows, therefore, that customers could enter and leave the beauty shop safely by the exercise of proper care.

Under the circumstances existing in this case, and applying the rules which we think have been firmly established by our jurisprudence, we conclude that defendant Lewis was not negligent in failing to remove the ice and snow from the private walkway leading to the beauty shop or in failing to erect signs warning invitees of this clearly observable, natural and well known hazard. In our opinion the defendant-occupant of the premises exercised reasonable or ordinary care for the safety of invitees commensurate with the particular circumstances involved here. We agree with the result reached by the trial judge, therefore, that defendants are not liable for the damages sustained by plaintiffs as a result of this fall.

Having concluded that defendants are free from negligence, it is not necessary for use to consider the issue of whether Mrs. Miller was chargeable with contributory negligence. Also, it is unnecessary for us to inquire into the correctness of the judgment of the trial court maintaining the exceptions of no cause of action filed by Mrs. Lewis and the House of Fashion.

Since plaintiffs are not entitled to recover, nothing would be accomplished by remanding the case to the trial court for additional evidence as to quantum. For that reason, aside from any other reasons which may exist, we have concluded that the motion should be denied.

For the reasons herein assigned, the judgment appealed from is affirmed, and the motion filed by plaintiffs to remand the case to the trial court is denied. The costs of this appeal are assessed to plaintiffs-appellants.

Affirmed.

TATE and CULPEPPER, JJ., dissent and assign written reasons.

TATE, Judge

(dissenting).

What we have before us is a pure question of law — the standard of duty of an occupier of premises and of a pedestrian when a walkway becomes slippery after snow. The facts are undisputed. The writer concurs in Judge CULPEPPER’S dissent, which fully states the law applicable to the present undisputed facts.

It may not be inappropriate, however, to add a few observations concerning the majority’s finding that the beauty shop operator was not at all negligent in maintaining a slippery walkway for his customers leading into his premises.

In my opinion, such was obviously negligent conduct on the part of the occupier of the business premises. Basically, negligence consists of unreasonably causing or maintaining a foreseeable risk to others. “Negligence as it is commonly understood is conduct which creates an undue risk of harm to others.” Prosser on Torts (2nd ed., 1955), p. 285.

It was perfectly foreseeable that customers attempting to use the walkway might slip and injure themselves. It was clearly negligent to continue this dangerous condition and to continue, by remaining open for business, to invite the customers to use this hazardous walkway, with the implied assurance that it was safe to traverse for those using due care.

This would be even clearer if a child seven years old, incapable of contributory negligence, had slipped and injured herself on her way into the premises as a business customer. If we visualize the sort of a situation where the injured person could not possibly be guilty of contributory negligence, it seems to me, it is very obvious that the hazard in using the beauty operator’s premises was unreasonably dangerous to others, involving a foreseeable risk to others using the premises with due care.

Again, if the beauty shop operator had put up-a sign stating: “WARNING DANGER — Walkway slippery”; the customers could have been alerted that extraordinary care was required to traverse the walkway, and that they should proceed into the premises at their own risk. The beauty shop operator might not have had many customers while the hazard was maintained with the sign warning of it; but, having' preferred to continue to invite the customers to use the walkway, without warning that the usual warranty did not apply that the walkway was reasonably safe for use with ordinary care, the beauty shop operator should not be able now to state that, no matter how hazardous and dangerous a condition to his customers he maintained on his premises, nevertheless he was not negligent in so doing, because the customers themselves should have realized the danger to their own safety to which they subjected themselves by giving the beauty shop their custom.

Under such a theory, the more unreasonable a hazard and the greater the danger created to others by the condition, the less negligent is the occupier of the premises in maintaining a hazard endangering his customers’ safety in their use of the premises per the implied invitation of the shop owner that they do so.

Thus, as my brother CULPEPPER and the trial court hold, there is no question but that the occupier of the premises was negligent; the only serious question is whether the plaintiff was contributorily negligent.

I further agree with the dissenting opinion’s conclusion that the present plaintiff was not contributorily negligent by her attempt to use with due care the premises, upon the implied invitation of the operator that her entrance into the business on the, walkway could be accomplished with reasonable safety, if she exercised due care. Exercising due care, the plaintiff nevertheless fell. Unless she was negligent in being on the streets at all because it had snowed four days before — unless all travel should come to a stop under these circumstances until the ice and snow melts — unless it is negligent per se to be on the streets and to slip on the ice — •, the plaintiff was not contributorily negligent herein.

My learned and sincere brothers of the majority fell into error in holding that the occupier was not negligent, in my opinion, by relying upon observations in cases in which the facts were totally different to the present. In the Levert and Sherrill cases relied upon by the majority, the defective condition complained of was not so inherently dangerous as to constitute an actionable defect in itself; therefore, in evaluating whether the defective condition under those circumstances constituted an unreasonable risk to others, so as to foresee-ably endanger those rightfully using the premises, the courts there took into consideration whether the defects in question, not inherently dangerous in themselves, might nevertheless constitute a hazard to others because not readily observable and therefore in the nature of a trap. It was or was not foreseeably hazardous to others, despite not being inherently so, depending on whether it might be a trap.

In the present case, however, the condition of the premises was in itself inherently hazardous to others using it with due care, since it created a foreseeable hazard to others who had to use the walkway to get into the business premises, and who were given an implied invitation to do so by the operator of the business on the premises. Therefore, maintaining such a condition constituted negligence under the most elementary legal definition of the term, that is, as creating a foreseeable and unreasonable risk of injury to others rightfully using the premises with due care.

CULPEPPER, Judge

(dissenting).

The trial judge found “ * * * the conclusion is inescapable that the entranceway to the House of Fashion was a negligently maintained hazard at the time Mrs. Miller attempted to use it. * * * ” He then held Mrs. Miller contributorily negligent and denied recovery on that grounds. The majority decision in this court has held the beauty shop operator was not guilty of negligence, and hence found it unnecessary to discuss the contributory negligence of Mrs. Miller.

I think the trial judge was clearly correct in finding the beauty shop operator negligent. Apparently there are no reported Louisiana cases dealing with ice and snow on the entranceway to a business establishment. But, in those states where this condition frequently occurs it has been generally held that ice on an entranceway does create a hazard, which condition constitutes negligence on the part of a business proprietor when he fails to correct the condition within a reasonable time after constructive or actual notice of the hazard. For instance, in the case of Milburn v. Knights of Columbus Home Association, 167 Pa.Super. 509, 76 A.2d 466 (1950), the Supreme Court of Pennsylvania held: “There is no absolute duty on the part of an owner to keep his premises and sidewalks free from snow and ice at all times ; his only duty is to remove the accumulation within a reasonable time after notice of the dangerous condition. * * * ” See also Silberman v. Dubin, 155 Pa.Super. 3, 36 A.2d 854; Great Atlantic & Pacific Tea Co. v. Chapman, 72 F.2d 112; Robelen Piano Co. v. Di Fonzo, 169 A.2d 240 (1961 Del.); Schallinger v. Great Atlantic & Pacific Tea Co., 334 Mass. 386, 135 N.E.2d 655 (1956); Werner v. Gimbel Bros., Inc., 8 Wis.2d 491, 99 N.W.2d 491, 99 N.W.2d 708 (1959); Watts v. Rhodes, 325 Mass. 697, 91 N.E.2d 925; Annotation in 81 A.L.R.2d 750, Secs. 4, 5, 7-9. As is stated in 81 A.L.R.2d 776, Sec. 7, the general theory of these cases is the familiar principle of negligence law that the occupant of a building has superior knowledge, or means of obtaining knowledge, concerning the danger. Having this superior knowledge he is under a duty to protect his business invitees against a hazard which might foreseeably cause injury to a person using reasonable care.

In the present case, this ice and snow had been on the walkway for almost four days. The manager of the beauty shop himself had slipped and fallen there. Defendant unquestionably had notice of the dangerous condition. He also had time to remove the dangerous condition. The manager made a feeble attempt to clean off the steps by pouring hot water on them and trying to chip the ice. Can we excuse the manager’s failure to protect his customers by simply saying that he didn’t know what to do or that it was too difficult? Actually, it would have been very easy to correct this condition by placing ashes, sand or salt on the walkway.

In my view, the only serious question in this case is whether Mrs. Miller was con-tributorily negligent. I have concluded that under all of the circumstances she was not. In the recent case of Richard v. General Fire & Casualty Ins. Co., 155 So.2d 676 (3rd Cir. La.App.1963) we stated the applicable general rule that contributory negligence is conduct which under the circumstances falls below the standard to which the plaintiff is required to conform for his own protection. Also, contributory negligence is an affirmative defense which the defendant must prove by a preponderance of the evidence. We quoted with approval 65 C.J.S. Verbo Negligence, § 50, p. 545 as follows:

“ ‘However, even though the invitee has knowledge of the danger, or the defect is obvious, the duty of the owner or occupant to use reasonable care to keep the premises reasonably safe for invitees remains, and it runs concurrently with the duty of the invitee to protect himself, so that, where the invitee does not fully appreciate the danger or is without fault, the owner or occupant may be held liable for the injury.’ ”

In the present case, defendant called no witnesses whatever to testify as to the condition of the walk or the manner in which Mrs. Miller traversed the same. There is no testimony that Mrs. Miller walked in a manner other than that of a reasonable person under the circumstances. She testified she knew the entranceway was slippery and walked as carefully as she could. The only possible negligence on' the part of Mrs. Miller was her initial decision to walk across the ice and snow.

Defendant contends Mrs. Miller knew the entranceway was slippery and “decided to take her chances”, and this constituted negligence on her part. I am unable to agree the problem is this simple. The courts of other states have almost universally held that it is not negligence per se, as a matter of law, to knowingly walk across ice. See the annotation in 81 A.L.R.2d 782-785, Sec. 9. Counsel for plaintiff has cited several cases where the trier of fact decided such conduct was not negligence under the circumstances. Siberman v. Dubin, 155 Pa.Super. 3, 36 A.2d 854; Great Atlantic & Pacific Tea Co. v. Chapman, 72 F.2d 112; Gaitskill v. United States, D.C.Kan., 129 F.Supp. 621.

I think that under all of the circumstances of this case Mrs. Miller acted just as any other ordinary, reasonable woman, going to the beauty shop, would have acted. She drove up to the front of the shop for the appointment which she had previously made; she saw the entranceway was covered with ice and snow; she saw this was the only way to enter the shop; she saw the shop was open and others had used the walk; she saw that the operator was inviting her to walk across this entranceway and, in effect, saying to her that this walkway was reasonably safe. It is true she knew the walkway was slippery, but she certainly did not think that if she attempted to walk across it she would fall and receive serious and permanently disabling injuries. There is no evidence she did not use reasonable care in the manner she walked. Under these circumstances I do not think the defendant has proved contributory negligence. I think the sole fault lies with the operator of the shop who, with full knowledge that the walkway was dangerously slippery, allowed this condition to remain for almost four days without doing anything about it, and who induced Mrs. Miller, a business invitee, to traverse this hazardous condition in order to keep her beauty shop appointment.

For the reasons assigned, I respectfully dissent.

On Application for Rehearing.

En Banc. Rehearing denied.

TATE and CULPEPPER, JJ., dissent from denial of rehearing.  