ON SUGGESTION OF ERROR. This case was heard by this Court on a former occasion, resulting in an affirmance by a divided court of a judgment of the lower court in favor of the plaintiff. 199 So. 294. Upon suggestion of error a reargument was heard before this Court in banc, there being three members of the Court who, because of absence and change in personnel, had not participated in the former decision.
In view of the considered judgment of the Court that the suggestion of error ought to be sustained, we refer to the former majority opinion for a statement of the relevant facts as being adequate and fairly presenting the theory of plaintiff. A mere summary thereof should be sufficient here.
Plaintiff was an employee of defendant, and was injured when attempting to step from a lavatory or rest room, constructed as a separate unit inside its manufacturing establishment, where she was employed. The floor of the rest room was no less than eighteen inches higher than the main floor, and access thereto was effected by use of a step which almost equally divided this height. In other words, the step in question was eight and seven-sixteenths inches high, and its tread was ten and seven-sixteenths inches wide. The remaining distance to the floor of the rest room was, therefore, approximately nine *Page 624 and nine-sixteenths inches. The step itself was before the trial court, and is before this Court for examination. Despite an unwillingness of plaintiff's counsel to concede the identity of the step in question, we are amply justified in accepting same as authentic.
An examination by us of this step reveals no structural defects. It is sound in construction and free of any latent or concealed defects. The record fails to disclose that it was insecurely fastened either to the floor or to the structure of the rest room into which it allowed access. The disparity in the height of the two risers — amounting to approximately one and one-eighth inches — could not be seen as a factor in the plaintiff's injury, even though such disparity be deemed ponderable. As shown, the plaintiff fell as she was emerging from the door of the rest room. Her testimony regarding the exact cause of her injury is not clear as to whether her heel caught upon the rest-room floor or upon the first step down. We must, however, here assume, favorably to her contention, that she tripped upon the step itself. Such assumption necessarily makes irrelevant the height of the first riser from the main floor to the step, since the fall originated in some cause located no lower than the first step. This narrows the issue of negligence insofar as the step is concerned to the inquiry whether a jury may be permitted to denounce as negligence the maintenance of a step with a tread of ten and seven-sixteenths inches with a riser of nine and nine-sixteenths inches. In passing upon such question, other factors are relevant, including the fact that the edge or nosing of the rest-room floor projected one inch above the tread, thus probably reducing its usable width when used in descent; the fact that such step was sound and secure in construction; and the circumstance, not adequately heretofore emphasized, that it was a step to a rest room. This last element, while not implying a relaxation of the substantive rule requiring the master to use reasonable care, does stress that the care to be exercised here was only to furnish a step *Page 625 which, under the circumstances, was reasonably safe. The step does not have to be absolutely safe; it need not be reasonably safe, provided the master has used reasonable care to make it so. Meridian Grain Elevator Co. v. Jones, 176 Miss. 764,169 So. 771. In adjudging reasonable care and reasonable safety, we must keep in mind that reasonableness must be defined in terms of an expectation that the servant will exercise reasonable care in using the place or way. Newell Contracting Co. v. Flynt,172 Miss. 719, 729, 161 So. 298, 743. This is particularly true in cases where injury is caused by missing one's step. City of Greenville v. Laury, 172 Miss. 118, 159 So. 121, 122.
There is nothing complicated about the step; there should be no intricacy in the rules of law applicable thereto. "In an action at law based on negligence, the question of negligence vel non is for the determination of the jury, unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge." City of Greenville v. Laury, supra. Standards of construction are useful only for comparison. Deviations from such standards constitute negligence only when they constitute deviations from the standards of reasonableness. Even in the construction of steps where the nature, purpose, or extent of their use should require conformity to accepted standards, it is universally conceded that so long as such steps are of usable dimensions the controlling consideration is not the height nor tread of the particular step, but the maintenance of a reasonable ratio between the riser and the tread which recognizes the pacing cadence of the average person. The testimony in this case indicates that the sum of the tread and riser should approximate eighteen inches. Such total was in fact twenty inches, unless the one-inch projection of the *Page 626 rest-room floor be deducted from the width of the tread, in which event the total would be nineteen inches.
In Pastrick v. S.S. Kresge Co., 288 Mass. 194, 192 N.E. 485, expert testimony fixed the proper sum of tread and riser at seventeen and one-half inches. Yet such sum as applied to stairs upon which plaintiff fell was approximately twenty and three-eighths inches. Although such construction was denounced by expert witnesses as being "not a good form of construction," the appellate court upheld a finding for the defendant, using the following language: "The court is not ignorant of common devices and common dangers, and no admission or expert opinion can establish liability where common knowledge shows that there was no danger so substantial that a reasonable man in the position of the defendant would have anticipated injury and guarded against it." See also Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8; Toscani v. Quackenbush Co., 112 N.J.L. 173, 170 A. 212; Stark v. Franklin Simon Co., 237 A.D. 42, 260 N.Y.S. 691; Dickson v. Emporium Mercantile Co., 193 Minn. 629, 259 N.W. 375; Boyle v. Preketes, 262 Mich. 629, 247 N.W. 763, 765. In the last named case the Court said: "It has long since been recognized that falling downstairs, where the mishap was not imputed to unknown or concealed defects, belongs to that class of ordinary accidents which ought to be imputed to the carelessness or misfortune of the sufferer."
In reversing a judgment for plaintiff who was injured in slipping upon a standard type of linoleum floor though highly polished, this Court said in Daniel v. Jackson Infirmary,173 Miss. 832, 163 So. 447, 449: "The testimony fails to show that such installation, maintenance, and use is so unreasonably unsafe and impartial persons could hardly be in disagreement upon the issue." The doctrine of reasonable care acknowledges no double standard. We cannot believe that, had plaintiff been charged with negligence in maintaining a similar step for a similar purpose, we could allow a judgment against *Page 627 her to stand upon a contention that such step was unreasonably unsafe and that in providing same she should be charged with a duty to anticipate that one to whom she owed the duty of reasonable care would, while exercising reasonable care for his safety, probably trip thereon.
Requisite care remains always that degree of care commensurate with appreciable danger appraised in terms of ordinary prudence and interpreted in the light of the attendant circumstances. Application of this principle leads to results which give play to such varying factors as time, place, and purpose. Although the expression and the basis of the rule remain fixed, its flexibility permits accommodation to each particular case. The area of factual doubt within which juries should be allowed to function is circumscribed within a circle of which care is the axis and reasonableness the radius. Within this area reasonableness is to be adjudged by reasonable men, and their right to differ is commensurate with their duty to consult. Beyond this limit lies the field of substantive law. Here are found those issues as to which reasonable men should not be in disagreement. It is here that "the court is not called upon to decide the issue of fact one way or the other, but it is called upon to decide whether there is an issue of fact under the law to go to the jury." City of Hazlehurst v. Matthews, 180 Miss. 42,176 So. 384, 385. As was said by Cardozo, J., in People v. Galbo,218 N.Y. 283, 112 N.E. 1041, 1045, 2 A.L.R. 1220, "insufficient evidence is . . . no evidence." Absence of a handrail under the circumstances cannot be held to be negligence, much less a contributing proximate cause of the injury. Any defect, therefore, was not in the step but in the stepping. No negligence may be predicated upon the construction or maintenance of the step in question.
We come now to the question whether the testimony relating to the amount of light available to plaintiff in using the step raised an issue of fact properly to be determined by the jury. Here, again, the duty of the defendant *Page 628 is to be gauged with reference to the factors of time, place, and purpose. Plaintiff's testimony showed that, although there were transoms across the front of the building, the light therefrom was "very little." There was a skylight about seven by eight feet in dimension near the centre of the building, but the full force of the light from the skylight could not reach the passageway down which one must pass to the rest room. Although there was a light in the rest room, there was no direct light in the passageway itself; its light came from the skylight which was located approximately ten or fifteen feet from the steps. The steps were upon the opposite side of the rest room from the skylight, and the rest room was so constructed that it was a separate unit from the main room and its walls did not extend to the ceiling. Materials stored upon the top of the rest rooms further obstructed the light. Thus the light from the transoms and the skylight came from over the top of the rest rooms, or penetrated the corridor leading thereto indirectly. Although the light inside the rest room was adequate for use there, the plaintiff testified that when this light was made available to the outside by opening the door, the effect was rather to blind the eyes than to serve them. It was conceded, however, that when the door was opened the light fell upon the step. Other witnesses for plaintiff testified that there were no lights installed for direct illumination of the passageway, which was about four and a half feet wide and twelve feet long. There were some cabinets stacked along the wall and the usable portion of the way was reduced to the extent of these, as well as the step entering respectively the two adjoining rest rooms. The door to the ladies' rest room was approximately nine feet from the end of the passageway. A witness estimated the distance at twelve feet, but the passageway was created by the wall on one side and on the other by the two adjoining rest rooms, which were each six feet long. The ladies' room was located at the far end of this way and the step and door thereto were located just beyond *Page 629 the middle thereof. There were lights burning in the main office, but these shed only an indirect light into the passageway. There is much testimony regarding the location and strength of the lights which were being used at the time. Most favorably expressed for the plaintiff, this testimony may be summarized by generalizations used by her and her witnesses, that the light in the passageway was "dim" and "about like twilight." In addition, there are available such inferences as may be drawn from the fact that the accident occurred near the middle of the day or early afternoon in June, 1938. One of the plaintiff's witnesses testified "it was a hot glaring day and the inside was dark." It is also relevant that plaintiff had been employed in the same place for nearly three years during most of the time the situation as to the steps had existed. This consideration is not made as invoking against plaintiff an assumption of risk, but as a circumstance relevant to the reasonableness of the safety of the particular place. As was stated in Boyle v. Preketes, supra: "From plaintiff's own testimony, as well as from other uncontradicted testimony, it conclusively appears that the illumination was such that plaintiff could have seen the steps had she looked. There is no credible testimony that defendants were guilty of negligence in failing to properly light their place of business."
So long as there was maintained a degree of visibility consistent with common practice in which deference is made to both propriety and duty, a jury should not be permitted to impose upon the defendant a higher duty in respect to the particular convenience here furnished for plaintiff's comfort than they, as reasonable and representative men sharing a common knowledge, have demanded or assumed. We imply no exception to the doctrine of reasonable care and safety, but hold that neither the step itself, nor the lighting by which it was located and identified, nor the combination of both, were susceptible of condemnation as a failure to use reasonable *Page 630 care to furnish a place which, under the particular circumstances here involved, was reasonably safe for one exercising reasonable care in the use thereof. Courts will not be presumed to be visionless . . . Theory should not outweigh practice and experience, and evidence which contests and contradicts the evidence of the senses must be received with caution." State ex rel. v. Clifford, 228 Mo. 194, 128 S.W. 755, 758, 21 Ann. Cas. 1218. As stated in Hercules Powder Co. v. Calcote, 161 Miss. 860,138 So. 583, 584, "the case arouses a sympathetic interest, but we think there is no proved liability as against the appellant here." Although completely aware of the duty of this Court to repel any invasion into the realm of the trial jury (Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; Brown v. State, 153 Miss. 737, 121 So. 297), and that "it must be a rare case of negligence which the court should take from a jury" (Bell v. Railway Co., 87 Miss. 234, 30 So. 821), we must recognize the reciprocal duty of the Court to guard against any misapplication of substantive principles in those cases where the admitted facts do not justify their invocation. The peremptory instruction requested by the defendant ought to have been given.
The suggestion of error is, therefore, sustained, and the cause reversed with judgment here for the appellant.
Reversed, and judgment here for appellant.