7 N.W.2d 711 | Neb. | 1943
This is a damage action for personal injuries sustained by the plaintiff in a fall on a rubberized mat, stripped and woven together with wire, that is spread before the entrance into the defendants’ store at 1518 Farnam street in the city of Omaha, Nebraska. At the conclusion of the plaintiff’s evidence, a motion for a directed verdict was sustained. Motion for a new trial was overruled. The plaintiff appeals.
The record discloses that the plaintiff, a widow, employed in a clerical position at the Supreme Council of the Woodmen Circle for about the past eight years, left her place of employment, together with other employees, in a cab at Thirty-third and Farnam streets in Omaha for a downtown district, on June 18, 1941, the plaintiff having a half-hour for lunch between 12 and 12:30. After arriving at her down-town destination, she proceeded to the defendants’
The mat in question is made from reclaimed rubber-tire casings, stripped and woven together with wire, and is about 30 inches wide. The entrance to the doorway of the store is approximately four feet in width, which would leave nine inches on each side of the mat, with windows and show cases on either side. The mat is fastened with pins or pegs at the top end, next to the door leading into the store, that hold the mat in place. One pin.was missing and had been missing for a number of years. It had worked loose from the cement and was removed by the defendants. The mat had been in use for several years. It extended the length of the ramp and a few inches beyond the entrance. There was a steep incline into the door from the entrance, 10 feet in length. The plaintiff was just nearing the end of the mat, was going to make the turn to the west, and was not off the mat, when she fell.
With reference to the accident plaintiff testified as follows : “Q. Did you get clear out of the entrance way ? A, No, I had not left the entrance way. I was just nearing the end of the runner, or this mat, and was conscious of going to make this turn, but I had not left, or was not off that mat. I was nearing the end of it, just the same as if you were approaching- the street and starting across, you are conscious of watching those lights. Q. What happened then? A. Something caught me and jerked my feet out from under me and pitched me out onto the sidewalk. (It might be remarked here that the plaintiff was wearing
A brother-in-law of the plaintiff, who was a building inspector for the city, inspected the mat the day after the plaintiff’s fall. When asked about the condition of the mat,
Plaintiff’s allegations of negligence, briefly summarized, are as follows: That defendants negligently and carelessly placed a narrow combination steel and rubberized fabric matting, eight or ten years old, on the ramp, the deep and wide corrugations of which extended lengthwise; that the mat was narrow, not fastened to the floor, covered the . central portion of the ramp, and allowed by defendants to be and remain in a worn, loose, dangerous and unsafe con-' dition, and defendants knew or, by the exercise of reasonable care, should have known of its defective condition, in
In considering a motion for a directed verdict the law is well settled. In Moncrief v. Interstate Transit Lines, 129 Neb. 168, 261 N. W. 163, this court held: “A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the facts in evidence.”
Applying the foregoing holding to the instant case, the burden of proof, by a preponderance of the evidence to prove negligence, is on the plaintiff as reflected by our holding in Miller v. Abel Construction Co., 140 Neb. 482, 300 N. W. 405, as follows: “In an action for negligence, the burden is on the plaintiff to show that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff’s injury or a cause which proximately contributed to it.”
The burden of proof is upon the plaintiff, in a personal
In the instant case, the plaintiff suffered a fall, the cause of which is not known to her or to any one else. There is no evidence that the mat was in any way misplaced after the fall, or that it was not in the same position as when the plaintiff entered the store. She was not stepping on or off the mat at the time she fell; nor was she close to the corners of the mat, but she was nearing the end, intending to turn to the west. This does not support her allegation that the edges of the mat were worn and curled upward. There is no evidence that there were any depressions or raised places or defects of any kind in the mat, nor evidence that the mat slid from east or west, as she had not made the turn. She did not know which foot caught, or exactly what happened.
The plaintiff has failed to establish by the evidence that the negligence of the defendants was the proximate cause of her injury. The trial.court could not escape the necessity of directing a verdict for the defendants in the case at bar. If it had allowed the case to go to the jury and a verdict had been returned for the plaintiff, the court would have been compelled to set it aside on the motion for a new trial, because of the failure of the plaintiff to prove actionable negligence. See Smith v. Epstein Realty Co., 133 Neb. 842, 277 N. W. 427.
The evidence fails to disclose the cause of the plaintiff’s fall. We can only surmise and speculate as to its cause, and a verdict cannot be based on mere speculation or conjecture. As held in Bowers v. Kugler, 140 Neb. 684, 1 N. W. (2d) 299:
“The burden of proving a cause of action is not sustained by evidence from which negligence can only be surmised or conjectured.”
We conclude from an analysis of the record and the authorities as set out herein that the action of the trial court in directing a verdict in favor of the defendants is correct.
Affirmed.