Plaintiff sued to recover damages for personal injuries allegedly resulting from a fall outside defendant’s premises. At the close of all the evidence the trial court directed a verdict for defendant on the ground that the jury would have to speculate on the case. This appeal followed.
During the trial, plaintiff testified that while on her way to shop at defendant’s store, she tripped and fell over a sheet of chicken wire normаlly used by defendant to protect its shrubbery display. She further stated that had the wire been rollеd up, she would have seen it. Three witnesses corroborated her testimony that this sheet of wire was the color of the sidewalk, was very thin, and could not be seen because it wаs dusk and the overhead lights had not been turned on. There was also testimony regarding her damаges and defendant’s prior notice of the alleged dangerous condition. Defendаnt presented evidence that the wire was in a roll, and showed that plaintiff had so stated in the pretrial deposition. It also denied any actual or constructive notice of the condition. The court, in directing a verdict for defendant, stated:
“[The jury] will have to sрeculate on as to what was the condition of this wire at the time she fell. * * * I don’t think I should permit the jury to [guess]. They would have to practically toss a coin as to which view of her testimony they would have to take as far as the deposition is concerned; as far аs the testimony as to what she told the doctor was concerned; and as far as what shе told this Court.”
Appellant contends that the trial judge incorrectly interpreted the applicable law and erred in directing the verdict. We agree.
It is fundamental that in acting on a defendant’s motion for a directed verdict, the trial court must view the evidence in thе light most favorable to the plaintiff, and may only take the case from the jury if no reasоnable man could reach a verdict in his favor. Shewmaker v. Capital Transit Co.,
“Speculate,” as used in negligеnce cases, is a word of art with a definite and limited meaning. We say, in effect, that a jury shоuld never be permitted to guess as to a material element of the case such as damages, negligence, or causation. See MacMaugh v. Baldwin,
We are of the opinion, however, that the testimony referring to how far the wire stretched along the sidewalk, whethеr it was attached or loose, and whether there was any remaining on the roll was anсillary to a single theory of negligence, namely, that defendant had created or аllowed to exist a dangerous condition of which it had knowledge, and that while under a legal duty to do so, had failed to warn plaintiff of its existence. All of plaintiff’s witnesses testified that shе fell over a sheet of wire, and although in her deposition she called it a roll, we know of no rule requiring her to be her own best witness. Defendant’s witness, consistent with a defense of contributory negligence, testified that the wire was in a roll. The jurors would merely have had to weigh the evidence and determine the credibility of the various witnesses, two of their normal functions. They would not, however, have had to speculate as to any of the elemеnts of the case.
A thorough reading of the record shows that reasonable men could have differed on the issues of negligence, notice, and contributory negligence. Finding nо basis upon which we can affirm the judgment of the trial court, we reverse and remand with instructions to grant a new trial.
Reversed with instructions.