Appeal from a verdict and judgment in favor of the appellee resulting from the giving of the affirmative charge with hypothesis in favor of the defendant when the plaintiff rested her case. The suit was for alleged injuries received by her when she slipped and fell on the terrazzo porch of the appellee hospital when she was entering it to visit her daughter who was a patient.
The complaint was in one count and appellant alleged that her injuries and damages were caused as a proximate consequence of the negligence of appellee in that appellee negligently maintained the porch floor at the place where appellant slipped and fell in an unsafe condition for the use of invitees at the hospital. The appellee pleaded the general issue and contributory negligence.
On September 10, 1961, appellant left her home about 8:00 A. M. to go to the hospital. It had been raining and there was a hard shower while she was driving to the hospital, but the rain had stopped when she reached the hospital. The covered porch at the hospital is kidney-shaped with the steps at the ends of the porch nearer the street than the main entrance in the center of the porch.
Appellant walked up the steps at the east end of the porch, took three or four steps, slipped and fell and sustained a serious fracture of her right ankle. She testified that the terrazzo floor of the porch was wet and very slippery. She noticed water on the floor when she fell, but no foreign substance, and she did not see any cracks or chips in the floor.
According to the testimony, a terrazzo floor is composed of porous cement with marble chips.
Several assignments of error are concerned with the refusal of the court to permit appellant's expert witness, Chapman, to testify as to what constitutes proper maintenance of terrazzo when wet. The following questions were asked and objections to them were sustained:
The two "it's" in the first question and "that type of terrazzo" in the second question referred to the terrazzo in the interior of the building. The witness Chapman had looked at the porch and the interior the morning of the trial and testified that the interior terrazzo had a different finish on it from the exterior terrazzo when he saw it; that when terrazzo is used in the exterior the surface would not generally have the fine polish finish he observed in the interior of the hospital; that the company he had worked for always used abrasive in exterior terrazzo, and that, generally, exterior terrazzo and interior terrazzo are entirely different.
The court properly sustained the objections to these questions because the maintenance of the interior terrazzo was not material since the accident happened on the exterior terrazzo on the porch.
Appellant contends that she showed that the interior and exterior terrazzo was the same by the deposition of E. C. Bramlett, the administrator of the hospital, introduced by appellant. After testifying that the porch was a standard terrazzo floor and that they did not wax it, the following took place:
"THE COURT: Is that a general type?
"MR. COURTNEY: Yes, sir.
"THE COURT: I overrule your objection.
We cannot agree with appellant's contention. In view of the entire colloquy, and the court's understanding that the reference was to a general type, we think this statement imported nothing more than the fact that both the interior of the main floor and the porch were terrazzo. This was not proof that the porch floor had an interior type finish on it when appellant fell, and no other witness testified on this subject. We cannot say that the court erred in sustaining objections to the two questions propounded to the witness Chapman.
We now consider the assignments of error relating to the giving of the affirmative charge with hypothesis. The trial court stated that he could not distinguish the instant case from that of Cox v. Goldstein, 255 Ala. 664, 53 So.2d 354, and for that reason, he would be compelled to give the charge. In that case, the plaintiff slipped and fell on the terrazzo vestibule of a store in Birmingham on a wet day where the terrazzo was wet and very slippery. This court affirmed a judgment based upon the giving of the affirmative charge with hypothesis and said:
We agree with the trial court that the Cox case is and was authority for giving the requested charge.
We cannot agree with appellant that the placing of abrasive strips by appellee on the porch at the main entrance was proof, either of knowledge of a dangerous condition, or of negligence in not placing such abrasive strips all over the porch.
The other argued assignments of error are concened with the remarks of the court when the jury returned to the courtroom for further instructions. A member of the jury said: "The question is: if the jury finds that the hospital is not negligent, can we still assess damages?"
The three assignments of error, Nos. 14, 15 and 16, relating to this phase of the trial are that the court erred in its supplementary oral charge to the jury (14) with regard to the law applicable to the case; (15) with regard to the factual and legal situation of this case, and (16) in commenting on the evidence in this case.
These assignments of error are too uncertain and indefinite, do not state concisely in what the error consists and present nothing for review. Matthews v. Maynard, 274 Ala. 330, 148 So.2d 629, and authorities there cited.
Additionally, to invite a review of claimed error in an oral charge, an exception should be taken pointing out the particular part of the charge complained of. Matthews v. Maynard, supra, and cases there cited.
Here, the statement of the judge contained four different topics—first, the answer to the juror's question; second, the law that the hospital is not an insurer of a person's safety; third, a definition of negligence; and fourth, the effect of Cox v. Goldstein, supra, on the instant case. Some of these could not be subject to meritorious exception.
The proper way to reserve an exception to part of the oral charge is for the exceptor to select and recite what the court said, or state the substance of what the court said, and thus, specifically bring to the attention of the trial court and this court the matter and ruling of which complaint is made. State v. Payton, 273 Ala. 49, 134 So.2d 198; Pollard v. Rogers, 234 Ala. 92, 173 So. 881. The exception taken here is general
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.