*1
is as who judgment capacity to exercise
tal bounty, to objects his natural
are the prop of his extent the character
recall plan for understandable
erty, form some thereof, follow and to disposition volition.17 free will and plan of one’s own this is a remembered to be
But finding made has which the
case in capaci not have such did testatrix
that the be disturbed finding will not
ty, which in the evidence basis reasonable
there Surveying the evidence all of support it. concerning the mental state and
as to say cannot illness we
extremity of her upon no substantial
there finding that Miss Richards base a capacity. testamentary
lacked Costs to contestants. affirmed.
Judgment wade,
McDonough, j., j., c.
concur. WORTHEN, JJ., con-
HENRIOD result.
cur Estate, Hanson’s 52 P.2d
17. See re Utah 1117. *2 pro- City, being Lake slick. She states that as she Nebeker, Salt Ray, Quinney & gressed step slipped, right or two her appellant. for folding going foot forward and her left foot Black, Wallace, Rawlings, & Roberts helped her under as she fell. into She respondent. City, Salt Lake husband, phoned the store where she her manager assistant Com- W. T. Grant CROCKETT, Justice. pany just Penney’s, store located south of fell in slipped and M. Sarah DeWeesе immediately who came to assist her. It is Depart- Penney C. entrance J. dispute without no rubber there were Street ment Main Store at South mats or abrasives on the floor at that time. City evening of November Salt Lake on the Medical examination later showed judg- jury verdict 1953. From a injury Mrs. DeWeese suffered a severe appeals, plaintiff, for the ment the lumbro her region sacral back ground that judgment on the attacking the require will spinal undergo fusion rulings respect a) the trial court erred in operation to correct. evidence, b) submission a) Rulings on evidence. jury, of defendant’s guilty c) ruling in not upon the principal attack made matter of law. contributory negligence as a assigned ad errors judgment relates to *3 testimony which mitting certain De- Mrs. day accident On attempt by as “an characterizes part the southeast home in left Weese customs up purported actions and set go caught a bus p.8 m. She at of town for de as a standard T. Grant’s store W. shopping, the stores some to do downtown no doubt meet.” There can be fendant to Monday night. open on being Just proper use been that it would not have that snow be- noticed bus she boarding the individual, procedure any particular left the flakes. She large fall gan to store, gen either or of the W. T. Grant Co. and State Streets South at bus Second particular erally, connection with this or in blocks to one-fourth the one walked storm, upon of care which to standard Snow Main Sreet. Penney Store Penney Company whether determine were sidewalks falling still was negligent.1 was into the terrazzo proceeded As she wet. testimony store, slopes of Mr. Frank Caffall which is of defendant’s entrance having just the fault re- enters, noticing singled admits out as she as one upward many muddy years’ experi- man of tracks ferred to. A and had floor was surfaces, installing thought it terrazzo he ence was says it but upon 07; C.J.S., Chicago, Milwaukee, N.W.2d Par Iowa St. Jackson See 1. p. 1049; ties, Company, 238 38 Am.Jur. 1015. § Railroad and Pacific Paul n calledto respect niceties with for reasons gener- thereto Asked expert. testify as an presently surfaces, to be stated. in connec- ally about therewith, questioned whether was he tion Assuming purpose for the of this dis- surface at the terrazzo he had observed cussion that above recited n Grant’s and, objection proper was admitted over “Q. you whether the Did observe defendant, incompetent it was neither nor in it—that had an substance abrasive prejudicial. could it been It un- at Grant’s? surface W. T. terrazzo doubtedly question true that if this were Aadnesen, defendant’s counsel: “Mr. isolation, considered it would be imma- Object that as immaterial. terial the surfacing whether at the Grant store contained an abrasive or not. But > may That “The be answered Court evidence is not to be considered in isola- ‘yes’ ‘no.’ tion; appraised it should be in context with ****** testimony the entire light and in the “Q. T. talking about W. Grant I am purpose for which is offered. Mr. Caf- pres- to Grant’s store —entrance fall’s effect to the’ that all Oh, time, yes, ent Mr. Caffall. A. wet, surfacing becomes slick when in it.” London Grits has composi- that abrasives are used in the answer, question a further After roughen tion to permit it. It not amiss specific him to refer to his knowledge or May the “Mr. Aadnesen: record particular observation of imple- surfaces in my objection goes to show that mentation and illustration of his statement as to what W. T. Grant entire line that such abrasives were necessary and has?” customarily were used. This would be “Yes.” Court answered: true appear unless it should pertaining to question next Upon the might understand that the surfacing of the Grant’s, objection surfacing at Company Grant being up set as an It will was sustained. immaterial example or standard оf care which the de- objection to the was no there noted meet, company fendant should a circum- the state- which elicited particular present stance not here. had "London surface Grant’s ment *4 important and controlling con- A more objection to “entire it. in Grits regard to Mr. in Caffall’s evi- question, there sideration that came line” only it could relate to the is- that is therefore dence is strike It to it. motion no terrazzo surfacing whether posi- as to in is now sue defendant that doubtful wet and slippery when whether fact some evidence. How- complainr of this tion necessary. measure was -The protective ourselves not concern ever, need we dis- facts and in- unequivocal there was related that the mats record is already about their store were parties out when he left. between the agreement Upon and in motion of customary counsel for the defendant it is fact and that both jury mats that such evidence be rubber stricken and the due to use keeping with care it, disregard the admonished to feldspar prop- the court such as or some abrasive patrons erly allowed such motion. This protection against occurrence- surfacing as a support positiоn snowing. In does contended for slipping raining when it is defendant, during but indicates repartee concerning to the con- the evidence trary, that the court any stated: was not trial, counsel under the defendant’s misunderstanding that the standard of care “ * * * desires, we would If he of the T. Grant Company W. could be used n feld- stipulate mats and glad to defendant’s, propriety to measure the in- spar during are used on terrazzo conduct, and that he was not allowing it to- weather.” clement presented so jury. This is in ac- brief, in their import cord with the of the entire record. From it and the instructions we do not see C. “Admittedly the defendant J. apprehension reasonable basis for feldspar dur- Penney used Co. mats was under mistaken they belief were just as inclement weather ing Street, required defendant was to meet on Main other stores used particular procedure of the T. Grant’s.” W. T. Grant including W. Testimony store. as to the customs and point of the fact, defendant makes practices similarly others situated was feldspar mats and had both fact admitted bearing upon the issue of what Thus readily available use. ordinary and reasonable care under the cir- by Grant’s were used abrasives cumstances was. Such only duty was the not dis- surfacing was in terrazzo othеrs of care submitted to the jury as reflected position that the defendant cordant Instruction No. wherein the court took. itself correctly charged that it was the defend- “ * * * duty, ant’s to exercise evidence which reason- The other matter of able care to keep the entranceway support argu of its stresses [its] reasonably store safe for the use being of its its standard care cus- ment tomers.” the Grant against that of Com measured relates pany b) Defendant’s negligence.
husband, Hugh engaged DeWeese. He was inquiry manager relating as assistant essential duties defend- in his neglgience ant’s the incident occurred in performing whether .Grant He assist his wife. told care just came due recited, call upon it knew
121 n or negli- upon gence. The standard which known, dangerous should have that a ordinary, is that of reason- gence gauged is condition sufficient existed whether circumstances, under which able care elapsed that, care, time thereafter due peculiarly juries fitting standard it is put sprinkled should have out the mats or It is in mind that determine. to be borne feldspar slip- on the surface to reduce the are con- holding we that the defendant’s jperiness. duct amounted as a matter in those This differs required only of law. We are to determine spilled volving foreign substance such whether there legitimate basis n oilor pool is grease, where of water upon the evidence which minds reasonable accumulate, creating a hazard allowed to could believe defendant failed which, under circum most ous condition meet its standard of under reasonable care stances, easily to the busi observable is as safety circumstances for its cus- The ter owner.2 invitee as the ness tomers. permanent part of the surfacing is razzo building. While it true of the The clearly structure evidence shows that the maintenance of "that the construction defendant knew of the characteristic of ter entranceway an inclined on wet, razzo to become and that negli plane custom, of itself constitute does not it was its and the custom other neg the rule that a gence, it within comes stores with similar surfacing to use rubber may which “creates a sit ligent act be one prevent mats or grit slipperiness during risk an unreasonable stormy uation which involves weather. view of this a expectable (cid:127)to action question another because of posed toas whether the de n other, or a person, an animal third dischargеd fendant to use reason 3 force of nature.” diligence storms, able and watchfulness for and to take such measures as the exercise is made that argument The of reasonable care under the circumstances will judgment effect affirmance would dictate.4 insur as defendant make stores be to remaining is as to the time which The patrons, safety their ers of element: there sufficient time upon only The basis reject. we argument the storm commenced that should reason- negli- predicated liability can Torts, 302(b); Par. Sons, See Restatement Brody & Albert Lifson v. 3. 2. See Walgreen Drug Co., 504; v. 383, Erickson 120 also 1955, Inc., 111 A.2d 17 N.J. 31, 210, Penney 232 P.2d 31 A.L.R.2d Utah v. C. Frank J. see on floor Oil Co., 177; Karren, 291; Grant Co. v. 123, T. 10 W. Cal.App.2d P.2d 283 133 Cir., F.2d 710. 190 Roberts v. Stoddard floor see Water Cal.App.2d Inc., Markets, 27 Public Walgreer Drug Co., Lindsay Erickson 519; See Hotel 4. v. Eccles P.2d supra. 477. Co., 284 P.2d 2d Utah customers, have of its the defendant should mats expected put out the ably been employed the corrective measures. slipperiness ? feldspar reduce the sharp dispute both as to is in c) Contributory negligence the time precipitation and amount of tiff. claimed that elapsed. Mrs. was entitled to as DeWeese only snowing for raining or
it had been
*6
reasonably
sume that
the floor was
safe.
that the amount
minutes and
5
10
to
dаmpness
muddy
Though she saw
and
plaintiff said that
very slight, whereas
thereon,
nothing
give-
tracks
there was
to
time she
from the
snow
to
it continued
warning
particularly slip
usually
IS or
bus;
took
that it
boarded
pery when wet and there is no evidence that
trip
and
to town
make
minutes to
20
she was familiar with such fact. She testi
walk
minutes to
5 to 10
probably another
Th«;
contrary.
fied to the
In the nature of
Penney
stop to the
store.
bus
from the
report
things,
entering
admitted in evidence
one
give
a store
weather
must
at
official
precipitation beginning
part
least
of her attention
watching
trace
to
showed
p. m.
continuing until 8:34
going
persons,
where she is
to
p. m. and
avoid other
8:12
necessarily in-
obviously
required,,
is not
or obstacles. She
evening, which
is not
likely
It
cannot,
statement.
and
in due care
give
with the
her en
consistent
valley
mountain
in this
tire attention to
one
hazard such
recognized
as.
is
possible
spotty
irregular
extraordinary slipperiness
sometimes
are
storms
floor,
place
starting,
particular
dura-
which she has no
time and
reason to.
as
Viewing anticipate.
precipitation.
Her
susceptible
is
amount
tion and
interpretation
light most favorable
that she
used the degree of
the evidence
ordinary
25
30
have been
care whiсh
per
it could
plaintiff,5
reasonable
began that the ac-
the storm
minutes
sons observe under
such circumstances,,
was,
occurred,
during which time
cident
duty.6
which
the measure of her
course,
observable
Upon
regard
do not
evidence of
We
the windows.
employees out of
per-
certain and
negligence
being
so
conclude that her
we
of such
basis
minds
so.
that all reasonable
would
find
could
that sufficient suasive
minds
reasonable
Union Pa-
we stated
Stickle v.
enough find. As
and that
had fallen
precipitation
“
* *
*
ques-
Co. :7
Railroad
in the exercise of cific
elapsed so that
time
contributory negligence is
safety
care for the
tion of
reasonable
ordinary 867, 870;
7. Utah,
328,
see also Lin
County,
P.2d
251
4
Taylor
Utah 2d
Weber
v.
5.
Co.,
Mm.
20 Utah
Anchor
v.
den
925.
P.2d
pose was to raise as here customer offering this enters and the care was exer- the underfoot greater actual condition of the inference surface en- well laying terrazzo at the is as known to the customer cised in of the person as nearby by putting charge property, competitor trance of a and generally proprietor, less slick. There before I grits make it am London testimony. unwilling proprietor to make the permit Caf- an insurer- was no basis that the made customer will slip he never and fall sustain testified injury. The fully ap- to the defend- of the entrance here was examination prised atmospheric store, of the cоm- and not know conditions did before ant’s proprietor. in defendant’s en- She position falling- of the terrazzo saw the snow soon after she boarded the She walk- trance. bus. ed more than pavement,, 660 feet on wet only purpose that could be In fact without protection rubbers other and I the intended accomplished assume the wet or against slipping, and she was- impression that the purpose give was to near the Grant store where her husband not, should, provide did but acted as assistant manager could at afforded Grant’s. protection as was same protected herself entering that husband, assist- store and getting having rubbers or them Co., T. Grant manager of the W. as ant procured for her. Company Grant experience with other his country his throughout the testi- knew stores that the terrazzo en- tranceway out at the mats were Grant’s was wet. mony that She testified that she noticed he was called to come to de- entranceway store was. error, wet. offering fendant’s alone to the fact that mats standard It cannot contended be that there is used, diligence but as to the also should danger entranceway inherent in such an be- them setting out as was promptness slope; cause of its slant or it was less thаn For these reasons I Grant’s. am done slope of the sidewalk itself. The ma- opinion that the admission of the jority opinion agrees that the construction complained prejudicial maintenance the entranceway of' granted trial should be new unless that a plane on an inclined does not of me agree shall on the sec-
the court negligence, itself constitute and it should my point dissent. ond n *8 here that observed for to relate the compelled to confess The writer that entranceway her fall as cause to see that this unable court has been he is and effect she must do more than show that .application in its slipped. consistent rules It significant most that applied in be should cases. failed to offer to establish the fact.
125 reached the am of the that we en- I person fallen on any had other of Gaddis proper result in the recent case years since tranceway during the Literary v. Ladies Club.3 There the very persuasive indeed that It is installed. upon slipped stage floor of tiff and fell person fell years other during those 17 was un- building. defendant’s The evidence negligence other than there must recently ap- disputed that wax plaintiff’s fall had been resulting on defendant’s plied high with a buffer to 30, plaintiff offer and buffed hand a Nor did November 1953. proof the floor only person shine. We held is. who to show that she was slippery present jury did not a passed entranceway after over slipperiness requires to whether such storm That could not be establish- started. by the entranceway jury was determination as to whether or ed because the wet in not the floor was so constitute Plaintiff tracked in other customers. any them breach of which defendant owed failed to establish to offer very speaking through invitees. This court slipped probably for excellent — McDonough Chief person said: reason —no other had fallen. Justice majority “The of courts in the I am not unmindful this court ap- hold United States the mere “Evi- Walgreen Drug Erickson said Co.1 plication wax to a floor will not con- occurring dence of the absence accidents negligence, though having stitute even complained may prior to the accident tendency some to make more unsafe establish that an admissible to slippery. [Citing To hold oth- cases.] not exist at the time of the condition did erwise, reason, per- these courts tois question.” The statement was accident jury upon speculation mit the to act decision; unnecessary judgment conjecture upon testi- having and a trial order- been reversed new slipped mony that he floor which grounds. ed on is not other statement he deemed to have been made exces- of the rule of evidence correct statement sively slippery by applica- authority supports weight and the great tion of wax.” the use such evidence to establish deny guest or hazardous To a business nonexistence of an unsafe or invitee proof recovery injury the absence of sustained a fall on a condition.2 So floor, polished slipped even is waxed suggestion high degree that others have to a slickness, very persuasive jury fact because it that the surface would allow the speculate permit and to dangerous. is not 121, 785, P.2d 3. 4 2d 1. 120 214. Utah P.2d 786. Utah case, Erickson 31 A.L.R. 2. Annotation p. 190. 2d *9 in, tes- is upon plaintiff’s keeping holding more our speculate case to
instant case, supra. en- Literary Ladies slipped the terrazzo the Club timony she sharp- requires trance to defendant’s store my opinion liability In should be im- no fac- the yet sever devised to er blade than posed unless it is that there is some- shown other. from the distinguishing one case tors intrinsically defective, dangerous thing polished slipperiness— floor hazardous highly In the case of the other than mere upon a floor intrinsically invitee enters some condition the business defective floor building proprietor defendant —a the which the cus- the of knows of and within by or the by own act tomer could not exercise reason- the made slick of sug- no make servant. Yet we able care have act of its known. case owes a in that gestion that defendant Unless we are willing to declare sign or other- duty posted warn to even slipperiness mere fact of alone is evidence of the slick floor.
wise negligence part storekeeper of on the of a permitted then to ac- compelled is to confess that should be The writer complish by throwing in its same unable to see this court result he is applica- speculate upon. them to majority opinion is in its case to consistent apply in rules which these cases. tion of the I trust that we reached have not state of enters rationalization where we will sur- here customer as Where jury, render our functions the under- to where we the actual condition store and pre- unwilling are to her as meet conditions known to to is as well surface foot say proper opposed sentеd and when there I am is no proprietor of store per- the jury, for and that we will in- against owner an insurer making the form our and determine the case as may regardless of sustain jury which question. as a law we should permit unwilling am conditions upon plaintiff’s speculate jury to any jury put Before should be free to we make fish slipped. doing so that she hand into store till we should be able fowl of Literary Club the Ladies say yes say be forced to there is — —that here. sufficient when it is apprised of the atmos- customer The entranceway shown that floor of an proprie- even before pheric deposited conditions slick moisture thereon hold held To defendant’s store. the shoes carried customers who it from tor majority that as soon by the or the sidewalk street. There should he opportunity has a beyond reasonable something proprietor required slickness, mere defendant will storm apprised additional hazard of some which the cus- anyone showing apprised who falls without is not tomer liable which is known notice, husband, warn- wife Mr. Fader’s brother and requiring proprietor go- They the cus- entered the together. for were proper safeguard ing some ing to the basement for protection. customer should lunch. tomer’s immediately ignorance inside the door somewhat either not be rewarded only ob- wet and powers somewhat of his due use failure to make fact incoming had carried customers servation. sidewalk, in water on their feet from the surface The existence slick and the further fact that some rain *10 cus- known to both the terrazzo is iswet blown in opened by as the door was incom- that proprietor know tomer and the —both ing and shoppers. outgoing slick when rendered cement and tile are per- charged Kresge the Co. hardly suggested that a Fader that can be Mrs. wet. It mat city having as rubber long in not negligent in our was who has been son floor; this part permitting man- in is assistant on whose husband this place; the floor at this on Main Street to be on of a business located moisture ager floor the wet warning busi- in not customers of in the same block as defendant’s and by plaintiff’s point, in exclude cus- failing at and it was testified to this ness when on while this condition lasted and she that of the establishments tomers witness 85% dangerous reason of this entrances averred Main Street have terrazzo slipped ef- floor and fell plead condition the person ignorance can immediately passing through upon the door. water these surfacеs. fect of directed close Motion for verdict made at along charge walking the street one We and after all evidence eyes open keeping obligation with the re- (denied). was in Ohio Court in seeing and hold and what is to seen pages the at versing case said 721-725 a reasonable failure to and heed what see St., pages 175 and 116 Ohio at 176 of negligence. should see is man would or N.E., pages at 134 and 135 of 58 A.L.R.: Fader, Ohio Kresge S. Co. v. In S. case, we are ac- disposing of “In 132, judg- 158 N.E. 58 A.L.R. St. sup- in offered the cepting jury’s on ment was verdict and entered about Fader’s claims Mrs. port appeals judgment affirmed the and court of accident, to the and pertaining facts supreme judgment appeal court on accident, as true. She prior reversed. was shop- as an invited the store into went any shopper rights that Fader all the that Mrs. per, with disclosed store, the store store; raining entering it was in has entered degree care im- her the same for some time had been owed time enter; patrons who Fader, all her owe Mr. stores thereto. all prior mediately owed her the say, there moisture on the floor of the that is her ordinary Manifestly Every- care for passageway? to exercise not. protеction injury body that, in against people while knows are en- tering any raining, building when it store. way then extends (cid:127)on manner. inside water store, usually stores front. other than floor. erly itself. [*] “It is [*] “There ais constructed on the got There was door On No claim is a fact known m= [*] display window. all There were there in level, each branches back ten or floor; except [*] H* no passageway side or surfaced nothing of defects that was made that it no of trade have h= of this [*] to all the rain middle manner stated. grease soap or The twelve in =1= H* into any kind passage- *11 passage improp- water soapy many floor feet [*] ‡ turn companions the same cate ggj- fied feet, which zvill render the ing on slippery than a out of the stance shoes extent, damp they there was fall, door 'i' will were wet floor Mrs. him Hí the case and the one warn her about the wet carry on H^ wet rainstorm, that it who Fader every the inside nothing about likely to spot when she went in there some sidewalk. Two of dry preceded said as she knew that presented any one of them floor. moisture and after walk- damp knows a little more did, he did In this it to who testi- floor her to some on crossed indi- spot, dan- their near own her did in- stores, the or office door to lessees of the entrance “Owners to (cid:127)or more banks, hotels, thеaters, usually a buildings, has or passage This store. buildings public in- to the side- where the is the door other slope from slight pleasure, is door. vited to come on business or line there no walk, which away of carry against the rain are not insurers all forms to slope is This may happen any who passageway. the accidents that may blow into practically Everybody knows that hall- fact the in come. passageway is The sidewalk, ways the outside same between doors of such but at the part of the a buildings line the and the elevators or business front of is within the it time building inside during store. counters the store, control under and that, per- rainstorm are all if continued tracked any one contend Would people coming the wet by feet passageway over into such walked son sidewalks, slipped the wet and there- from are and there raining, it was slippery they by rendered more than damages because fell, recover could he thing Company guilty Kresge The same be. would otherwise any particular charg- hallways post of- in as of all in true petition. persons ed Mrs. in her dzity Fader It is not fices. mo- keep granted trial court should have buildings to such
control of tions mop up Kresge of counsel for the Com- moppers to largе force of in, pany or for a in its favor. it or hlozvs directed verdict rain fast falls this, Appeals clothing Failing or feet or Court is carried in wet umbrellas, very good judgment rea- should have reversed for several sons, wholly judg- un- trial final court and entered all so obvious it ment Company. de- for the Kresge them here in necessary to mention tail. “The judgments will of both courts be reversed final entered judgment in mind that this
“It should be borne here in favor of the in error.” happen in some dark accident did not (Emphasis added.) shop- walkway in the store where necessary go. It oc- per found Inc., Robison, Co., Penny C. In J. daylight, there is curred broad 401, 403, A.L.R. 193 N.E. St. Ohio pretense there anything no 70S, that she was in de- plaintiff alleged any shopper prevent seeing invitee; store as an fendant’s precisely knowing what the conditions placed placed or caused to be company had were. slippery other sub- floor oil or some on the dangerous walk making the floor stance every accident gives
“Not that occurs upon; slipped upon that she over to a cause of upon rise action substance, injured. slippery fell and was party injured may damages recover from some one. Thousands of acci- company plаced oil denied that every day dents occur for which no one any slippery other substance damages, is liable in and often one dangerous for the extent it was blame, tois not even the ones are who thereon, and persons to walk denied injured. The character or extent of substance was left on oil injury upon bearing ques- has no in- negligently; that whatever the floor therefor; liability tion of the neither by plaintiff sustained juries were has the wealth poverty nor the either proximate sole and of her were the result party litigation to such a anything At the negligence. close of own liability do with the for the company moved for directed accident. verdict, granted. which was The court of *12 appeals in the trial court
“There is no evidence this case reversed re- and prove, proving, appeal much less the case. On tending to manded Ohio 130 involved, jury is question for the trial of verdict
Supreme the directed Court by jury his trial deny a citizen is to to reinstated. ordered and sustained court was right.” has the when he foot “'My left testified Plaintiff * * * my heel and fell I slipped and Mehornay Furni- In Fletcher North was my shoe tap of falling, in off came Missouri, 359 City, Kansas ture Co. and ’ ”*** court The my heel. of off torn 789, 790, 607, appears 222 S.W.2d Mo. F. W. Kipp v. observed, quoting plaintiff of walking fell while in front 283, N. 134 App.Div. Co., 150 Woolworth City. al- store in Kansas She 646, 647: Y.S. company leged that defendant furniture ‡ * “<* pa- people of Thousands in negligent was that it had reconstructed one No every day. store portion a the sidewalk in tronized of front of “ No there. have to shown ‘marble (ter- else or tile substance fallen ever one else any slick, razzo) smooth, claims fell and one slanted the floors oiling by polished highly glazed reason and when wet and * * * not fair- does the evidence and reasonably became and was not condi- extraordinary by pedestrians ly disclose safe use to walk there- ” ** added.) (Emphasis tion; ”; -alleged city on’ that the negli- in gent permitting company the furniture be- in case showing no “There to construct said sidewalk permitting slipped ever any one fore us it to remain in said condition; unsafe question.” the floor by both defendants “knew or the exercise negli- to trial as jury right to As to proper degree of care could court negligence lack of or gence J. known that said sidewalk at place said Robison, Ohio Co., Inc., v. Penny C. reasonably pedestrians safe for 404, 100 A. 401, page at N.E. St. “ ”; use’ that at the time fell ‘said page said: L.R. was wet sidewalk and thereby rendered by right of trial agree that thе “We ” slippery.’ slick and by all citizens guaranteed jury is Ohio, answers can- Defendant’s consisted a gen- and it the Constitution plea by legis- contributory neg- denial eral invaded violated not be decree; company furniture charged but judicial ligence. act lative cases, injuries were her mean that all contributed does all this evidentiary aspect, negligence must inattention to her own regardless watching safety law without jury. our where she was Under be submitted city charged stepping. in- pernicious submit just as it is “ directly specu- received jury ‘were permit juries to a failing citizens when caused rights of late
131 ” * * bility The brass used was eyes because the so to use her and senses slippery though the fall court said: Missouri were bedded in the 354 Mo. plaintiff fell on the terrazzo to bies of and slick. It cit. 607: and slick tiff is ed. In that case the terrazzo “In Schmoll commonly the defendant’s could not recover. brass stores, court ‘The evidence as in the letters and these used as a v. National Shirt and the use said, 193 S.W.2d terrazzo in store and held present S.W.2d flooring shows of brass case; em- was ruling were 605, the entrance terrazzo in lob- Shops, injur- case wet wet loc. in pery condition of the well was no ant.’ inferences [*] said that done of all the most favorable support of her case and all “Respondent is entitled to the benefit ****** [*] liability occasioned known we do not think it can be dangers [*] ” therefrom, but of defendant for to made a that are by dangerously slip- submissible brass. obvious, when this is evidence to defend- There is the fair injuries justly or as case. in joints likewise expansion is providing opinion The majority concedes that of terrazzo construction common construction and maintenance of the en- considered has been flooring; it tranceway plane on an inclined terrazzo expansion (with brass terrazzo does not of negligence itself constitute but inherently dan- flooring is joints) as a asserts defendant knew charac- held not to be is ; gerous teristic slippery terrazzo to become when the use of merely because negligent imposed wet which to use reason- joints expansion brass diligence able and watchfulness inclem- for lobby floor. construction ent precaution weather and to take Small, Mo.Sup., supra, Cameron possible against injury to its customers. from the is seen It also 565. S.W.2d opinion We think the propo- overstates the em- brass in the use of it sition made to demonstrate. The indicating lettering or designs bedded is to saying tantamount that bе- mark, slippery cause a name terrazzo is when wet defend- name a trade negligent failing provide ant was pre- to the terrazzo uncommon is cautionary protect against measures it stores; lobbies of entrance floors becoming slick. smooth and however, becomes brass and, wear, so, by polished highly holding is in fallacy that defendant Yet, defendant when wet. slippery negligent precautionary is it to take is fails protect against subjected to necessarily lia- measures terrazzo. not be may granted invitee I takes and under If wet terrazzo is a hazard an for that at all times the defendant from all logic relieving see no conditions wet terrazzo is liability prospective who the customer owner’s established a snow- fact slipped that he within three minutes knew it was wet. proprietor knew began storm and before In the case it Erickson was assumed wet. or could have known was subjects not all wet terrazzo customer premise is that risk. with the unreasonable In this case the trouble opinion requires negligent majority more than assumes that defendant entranceway. showing of wet having knowledge wet terrazzo in its terrazzo and *14 property the owner is wet estab- tes- Caffall However, witness negligence. lish That conclusion not does are and wet cement terrazzo tified that wet properly follow. myself I find the same slickness. of about opinion In my any negligence before can prop- the accept premise the unable to part property established on owner respon- all the erty is burdened owner affirmatively it must be established that the up precautions setting unlimited sibility of wet, by terrazzo floor was and that reason its injury to customers. against particular of the conditions in the the case Walgreen Erickson v. the In visitor subjected to an unreasonable Co., said Utah supra, this court Drug [120 risk. P.2d 214]: “:|! I cannot proposition subscribe to the * * jn the £iie instant case showing that a slipped visitor on wet ter- only ter- liable the can appellant razzo where owner knows it is wet estab- razgo subjected busi- lishes part the proper- on the risk to an unreasonable visitors ness ty owner. either knew appellant I am of the opinion that the judgment have care could of reasonable exercise should be reversed and action dismissed. a condition ex- that such discovered added.) (Emphasis plaintiff isted.” made a I cannot see wherein jury. go to the Plaintiff had the case to requisite impose liability The condition fell, that at time proving burden of appellant in the Erickson case was stumbled, slipped or the terrazzo entrance subjected floor when wet terrazzo “if as to was wet and constitute a haz- so slick unreasonable to an risk” visitors business entering ard to customer store. appellant had actual constructive and the condition. notice of showing Plaintiff had also burden of presuppose that unreason- not the slickness at that It does always present when terrazzo moment was such hazard to risk able same, majority crossing carelessly, in this case hur- wet. riedly, proximate the under- surveying not without cause (plaintiff’s) of her in- conditions, jury. foot but of rea- exercise sonable care that defendant knew or my opinion plaintiff failed establish
it exercised reasonable could dis- care that she fell because of the slickness of the covered the hazard. terrazzo and failed to establish that slick- ness of the terrazzo constituted a hazard to to disclose that the fails requiring customers the defend- entranceway ever became so dan- slick and protect ant to take measures to them. gerous negli- as to establish defendant’s gence. The evidence to establish that fails evidеnce, Plaintiff offered no other than entranceway imposed conditions fell, the fact that she to show that the en- precautionary on defendant to take tranceway had become so as to protect measures to its customers. constitute negligent defendant in failing to precautionary take measures. It is undis- When did entranceway become so puted that there was an abrasive in the ter- dangerous all, hazardous, if at as to razzo at the defendant’s entrance. The tes- impose liability failing on defendant for timony of Dr. Harris to that effect is not protect precautionary steps to take questioned, refuted or even manner. knowledge, customers? theWas so-called’ actual requiring or constructive It presence is admitted that the of such act, first effective at the instant abrasive lessens the slickness. There is fell? Had defendant charged been with undisputed evidence that the terrazzo en- knowledge required of such a condition as *15 trance no was more when wet than precautions it to take during the 20 minute the sidewalk in front of the Penney C. J. period preceding plaintiff’s fall? When direct Co. store. On plain- examination point prior was the earliest of time tiff’s witness Mr. Caffаll testified: plaintiff’s fall that defendant would have been liable had a customer fallen? How “Q. you compare the, Can for us proof what are these facts estab- respect degrees slickness, with the By speculation conjecture lished? the surface, wet terrazzo with other com- jury, pass upon or the court should monly-known surfaces you with which the there same as a matter of law where acquainted; example, are ordinary evidence, here, to be submitted to the Well, ordinary A. cement? cement jury? would very and terrazzo similar. “Q. they compare How would plaintiff fell not
The fact that does es- Very slickness when wet? A. simi- negligence of defendant tablish either the lar.” the terrazzo was or slickness of that the timony along that as she walked she noticed sup- testimony plaintiff
Nor did thought "hut never entranceway that the floor was wet port any that conclusion like that” being anything slick about slippery. was She testified: a want of due care. she saw shows When along nor- just walking “A. was I fail negligent she was to ex- it was wet business, my mally, own minding protection. care for her own ercise due wet, but never I was noticed only shown from my opinion negligence anything thought being about it slick plain- testimony was like that. tiff. “Q. happened? A. And And what inescapable conclusion that knew, aft- thing I was down the next I entranceway was wet tiff not believe the did feet inside gone I two or three er ; enough a risk or hazard to constitute the entrance.” probably is no evi- right. was There con- support any in the record to dence tending offered no evidence Plaintiff submitting justify clusion nor other than the fact show condition any haz- jury for the to find there was entranceway was which shows no ard. part. way negligence on .charged was lighted. If defendant de- Plaintiff’s own warrants knowledge that wet terrazzo is slick neg- nial of her claim defendant was plaintiff. knew It is clear so is ligent. apprised the weath- Plaintiff was wet, entranceway was there is no evi- er It conditions outside the store. had that knowl- the defendant dence any knowledge shown that defendant had edge. might It well the weather conditions. entering assumed that customers liberty to assume that are not at
We slick dangerously store found the entrance possessed of normal facul- plaintiff was’not reported they would have that condition to I am ties. who waited on The court clerks them. experience know from her fail to could indicating without scintilla of evidence and kitchen that tile or in her bathroom storming, defendant even knew it when wet. slick Nor can is more linoleum let answer as to lack plaintiff with such of ob- charge we storming whether knew it was pave- to know that the to fail servation upon their out guess to build of whole walked more than ment, which she over the further cloth conclusion that defendant question, night is much more feet on storming if was knew it that the entrance- Her fall cannot be recon- wet. slick *16 wet; way be if than her own lack of or- must and the terrazzo any other was on ciled safety. it Her wet must slick and was for own tes- it slick dinary care
135 plain- ordinarily including was a create an actionable situa- to customers hazard tiff, sloppy defend- A plaintiff fell tion. wet and condition and therefore if negli- may necessarily ant floor incidental negligent was and activity question.” gence proximate cause of business or was the fall injury. and & Sears, In the case of Roebuck Co. v. Johnson, Cir., 332, 333, plain- 10 F.2d opinio'n majority As observed tiff, Johnson, slipped allegedly on an dur- many patrons defendant’s store enter slippery Plaintiff and floor of defendant’s. was of- ing business No evidence hours. neg- alleged carelessly and defendant person entered any who fered that other ligently permitted floors at allowed and plaintiff en- at the time the store before or stairway leading head of the plaintiff offer slipped, did nor tered had slippery, basement wet and and to become Slipped between anyone had testimony that permitted lights out of to become or- laid and the was when the der, slippery unlighted and and that said plaintiff fell. time permitted condition allowed was for a that the entrance- to show failed Plaintiff period hours, more than and that four danger; latent any hidden or way contained by reason of such carelessness negli- imperfection showing of there was gence part permitting defendant only showing made in the surface. the floor become slippery, wet and was no evi- There wet. it was condition, dangerous was “caused a which was unreasonably slick. it was dence either known to these or should defendants any expert or testimony of only fact, the been known them they exer- Harris and he Dr. knew ordinary safety who care person cised oth- terrazzo and having tested ers, as to and which condition hazardous to testified * * was consid- with what provided alleged Plaintiff it was treatment, carbo- to wit: proper that was see that ered rubbers, have on condition, did Plaintiff was in a safe floor that de- rundum. she shoes perform duty; the wet failed said fendant as a did not show safety. plaintiff stepped upon to her result of conducive wearing were wet and floor which caused Negligence, Redfield on In Sherman court made fall. The the following tiff’s Edition, p. Vol. sec. Revised “The trial court ruling, should have sus- is made: the statement motion for a tained defendant’s directed mud, “Water, judgment tracked in favor. Its slush verdict re- grant con- instructions to ap- reason of weather floor versed upon a outside, pellant a new trial.” court although it renders the used this ditions language: wet, slippery does not dirty and *17 136 appellee that disclosed The evidence its. record, appears
“From basement the stairs to started down city, wa- some raining in said it is galoshes wearing She was obtain lunch. by par- into stores usually carried ter down the As started she over her shoes. out, and that those in and going ties muddy and they were noticing day steps, wet without on a from coming in the banister hold of slippery, took shoes. wet have she reached but as keep falling, from to infer just as reasonable “It is top, her foot step or fifth fourth shoes of wet slipped because observed: court slipped fell. The and she damp floor. on account of within plaintiff that her shoеs [******] “There was no information knowledge. were on peculiarly not part of wet, to become was no stairs, is that “The in a or that appellant permitted its sole charge dangerous charge remain they of of were condition. defect stairway properly and There here ****** The slush at all times. lighted slip- placed by there the act may have were not that invitee snow “The fact were tracked in appellant, store did not but ped of the the floor on of (Emphasis added.) burden establish- customers.” of shift through not occur did ing that accident to a referring case decided court presumption create negligence, nor observed: court the Illinois presumption is negligence. care, “ reasonable defendant exercised * * * by facts some- Confronted injury to respects liability for those of the case at what similar slipping on floor. tiff on account Appellate bar, Illinois Court against insurer an Defendant was not 247, Co., Ill.App. Murray v. Bedall 256 the store persons entering accidents have the trial court should di- held otherwise on making purchases or of the defend- verdict favor rected a added.) (Emphasis invitation.” in the ves- The fall there occurred ant. stairway just Co., instead of on thе tibule Kresge F.2d Brunet S. S. v. here, entrance as but we do judgment. 714, inside plaintiff recovered significant consider distinc- directed verdict for a at Appellant moved evidence, The court there seems to again tion. appellee’s close on fact of com- its decision The circuit based all the evidence. court close parative knowledge parties, say- judgment and di- circuit) reversed (7th ing, on the mer- the case dismissal rected
“ rainy mopper ‘From the at the stationed doors apparent danger, any, days purpose it is that the for the mopping sole her, clearly up every as well as entering evident to customer defendants, was aware leaving premises. Every and that she possibility required the condition and of owner would to be in- against she under- sustaining public a fall before surer such accidents to pass along the over and invitees who rainy days took came in on Sears, space of vestibule. with wet shoes.’ Roebuck & Co. Johnson, “ 91 F.2d 339.” by the wit- ‘The described condition only not un- that is not is one nesses In Parsons Co., v. H. L. Green Iowa *18 found on usual, customarily to be but is 648, 40, 41, plaintiff brought N.W.2d an testimony, the days in as described such injuries action for alleged to been have and the of this character in vestibulеs sustained falling in defendant’s store. premises surround- the and sidewalks At the close testimony the * * * public places. ing entrances court sustained defendant’s motion for di- verdict, rected plaintiff “ appealed. and plaintiff was at bar the ‘In the case Supreme of Iowa Court referred to the exist- the condition apprised well as heavy day storm on the question in and defendant, the in the vestibide ing plaintiff entered the store and started high degree to as held should be and down the stairs to the basement and ob- safety would be own her care for served : [Emphasis defendant.’ the required of “ * * * The stairs were of added.] ce- pellee premises in maintenance [*] reasonable for Circuit Circuit “ “We water: rather ‘If what her accident. [*****] fail think in Court toas dark another and the was shown disclose stairs render Appeals for the Tenth ordinary facts as In supervision of wet from tracked- involving such a appellant liable proved words of the care in this case lack of by ap- a', fall the [*] ^ them and were smooth. Plaintiff was slushy and wet and that packed thereon, which made ment with small carrying a mony that arm and her jured. steps plaintiff slipped, fell and was in- There is testimony that the stairs were and muddy. % sack of about >}* purse There half way groceries pieces in was soft ‡ of tiling in right in her left also down the snow had ‡ hand. testi- steps ^ inherently permit recovery, such dangerous “No con- sufficient was bar, require owners to have is shown in the dition case at nor would and, by peo- no- when wet and tracked over actual or constructive is there such hold defendant required ple store, tice as is simi- entering becomes so lia- shall be that there liable. In order side- appearance lar in to the cement be some bility, there must ordinary person entering walk that the condition, either existing- notice of the would not he the arcade observe that constructive, time such actual or type passing from one of floor in the exercise defendant another, place for this reason the remedied it. ordinary care could presented persons pitfall trap such No evidence of [Citing cases.] using the for entrance manner record. knowledge appears in designed and intended. [*] mission of negligence as (Emphasis “There [*] is no added.) [*] would authorize such [*] showing [*] here [*] jury.” sub- [*] walk had been wearing door so that “Mrs. Knopp rubber muddy tracked cement of the sidewalk testified that she was galoshes water from toward the time; side- and the terrazzo looked all the same Herbert, Kemp 193 Wash. Knopp & ” * * * color. directеd verdict was 160, 74 P.2d appealed. The architect, Rasque, Mr. testified show disclosed facts he had examined floor where the acci- the terrazzo floor ar- slipped on floors, happened dent and several other store, between but defendant's outside cade and that this was more than entrance. the store the sidewalk of the others. He testified arcade is of cement. of the store in front sidewalk too smooth a surface to be used *19 it the sidewalk where of inside Along the for in good outside terrazzo work. That small blocks of terrazzo rows joins the practice designing constructing for all square in are set inches two about glass exterior, they floors for an terrazzo add in sidewalk front cement. The the anti-slip mixture or abrasive car- such as or water had and slush borundum. where terrazzo floor the slopped over As sidewalk. cement the joined it court said: The slipped and she terrazzo on the stepped tiff requires storekeeper “The law to Washington Court Supreme The fell. his storeroom and the maintain en- observed: thereto in such a trances condition aas reasonably prudent careful and terrazzo store- that the “It alleged protect exceeding- keeper deem sufficient becomes would' smooth very color, danger from wet, customers while exercis- is dark in slippery when ly safety. disputed, ordinary their own 'ing care for that there mate- abrasive
rial in the terrazzo vestibule the defend- ant and the upon that terrazzo which Sara testimony Rasque, to Mr. the “The Brody dry fell was floor, though suitable effect applied water was it would become much floor, ‘too for an smooth’ inside slippery. more use, expression is a mere outside fact point. furnishes no personal case is not in Here the undis- jury to puted the data would enable evidence is terrazzo in entranceway Penney floor was so smooth as an find C. had Co. J. main- or that its actually dangerous, abrasive it. negligence. tenance constituted men- It is submitted that the cases herein Mr. fact, one sure cannot even ,our discussed warrant tioned and would it evidence, Rasque’s that he considered plaintiff failed to make out a holding that it made so, unquestionably he although judgment should be re- have thought he would plain that given direction action versed and great pro- been safer had contained be dismissed. portion material.” of abrasive amI unable to see wherein estab- court, “The decisions of this as well subjected lished that she was to an unrea- courts, decisions of other risk; if it sonable be assumed that the en- very generally recovery denied in cases tranceway, question, time in sub- persons where have fallen on smooth jected her risk, to an unreasonable they slip- floors even when are made failed to show that the defendant had presence pery of wax or water. knowledge of the condition. She likewise » íjí Jjí if: failed show defendant should opinion proceeds majority risk, have known of the unreasonable un- entranceway because the conclusion that less it charged knowledge because it become was of complete- weather condition. The record is which involved wet it created situation ly any devoid of evidence that could charge plaintiff. The case unreasonable risk defendant with the of making Inc., Brody Lifson and Sons v. Albert inquiry as to the weather conditions. 111 A.2d is cited and 17 N.J. Elapse of time after rain started alone authority. commended as An is not sufficient. examination my opinion record fails to important because disclose case is That of defendant but would war'rant situation from the fact difference plaintiff was finding negligent expert There was casе. instant —and n case, negligent. alone was not'. that which was Jersey New *20 night fallen She testified that on the because of water tracked in from pumps; by she the wearing preceded street others her. she black suede who was may The Her fall galoshes. as well wearing was not rubbers or have resulted from the three pumps wearing was were one-half inch was heels she They wearing or the fact hurrying in evidence. that she offered and received was top; get storm, out completely to of open are over the entire she testified that she had strap way fastens or tends her hand keep no or lace in over her head to foot, dry; is her hair it may and there to the shoe to have hold been mere play certainly within prevent the foot nothing to of she failed show to carelessness — the it was a result of where fastened to The heel negligence. shoe. approximately one a width of shoe has Our rule in such should fee this: cases inches, and is three one-half one-half allege Unless and until a shall the rear or back high measured from inches slip conditions connected with tip bottom of of heel. said something and a show more than fall inch in approximately of an % heel slick entrance which as plaintiff could see wood itself is made of The heel width. defendant, as well and well the thou- the bottom covering of suede. On with a sands of entrance- others traversed the tip is a leather fastened of the heel mishap way without until evidence tips heels of both by small —and heel nails. showing is offered defendant guilty are sheer with that the nails are worn so having slippery more than en- wet and tip, so that of the leather the bottom tranceway place business, to tip come or nails walking the metal disposed should be judgment of either or terrazzo. with the sidewalk in contact pleadings alleged or if sufficient is opinion plaintiff did establish my proved, by but a directed verdict. fell because required what was —that show tending There was we the terrazzo. Can slickness known, knew should have that defendant and not the slick terrazzo say care, that reasonable exercise ? her to fall pumps caused tiff’s Was under raining. proffer employee stationing evidence to door failed an Plaintiff when wet Should the terrazzo learn it rained or snowed? show n point being step employee hazard. out at defendant have 10, IS, 20, falling given not establish fact. 30 or did intervals Her time — opine I re- do what check the weather? I fail did not 60 minutes to Plaintiff wit, that others show had fallen. find the evidence fact which quired —to preceded her into the en- justifies charging others defendant with knowl- know We fact, she claims tranceway edge the terrazzo had become wet. —in *21 slipperiness?” (Emphasis evi- duce the supporting such judge No could find only by the added.) be found dence —that could
speculation jury. of a dangerous that a opinion assumes The entranceway in not- existed condition be- majority opinion suggests that
The complete of evi- absence withstanding a beginning of the storm tween any evi- Nor there fact. dence minutes, fall could have been 25 to tiff’s entranceway rea- dence course, was, ob- time it “during which establishing sonably Then safe. without employees out by the defendant’s servable liability— premise of defendant’s first There windows? the windows.” What opinion entranceway dangerous any other than evidence of windows is no —the trans- with of automatic the smoothness night, display windows. This was a dark point proceeds to the second mission November, day I p.8 m. in after last —de- knowledge the non-existent fendant’s minds could not find that reasonable submit of locomo- hazard- —and with same ease the evidence that defendant knew tion after concludes 25 to minutes or fact facts or terrazzo was charged it started to storm defendant is with charge defendant were disclosed feldspar duty sprinkling or having knowledge by the exercise putting out mats. reasonable care. Let it assumed that defendant had ma- fallacy reasoning of the spread feldspar put or out mats before these
jority demonstrated the storm started —before wet was statements: entranceway into the tracked —would inquiry relating to essential “The dangerous -be conceded no condi- negligence is whether tion existed? just care performing due opinion ignores known, undisputed recited, evi- it knew or should have dence of witness that the same existed and dangerous that a condition result is accomplished reducing slipperi- elapsed whether time there- — sufficient by putting an abrasive care, such as car- that, in it should have due ness — after borundum mixture feldspar laid; sprinkled put the mats out undisputed the evidence is that the slipperi- reduce the on the surface to abrasive in it. ness” and “ * * * the last mentioned time Unless evidence is was there sufficient ignored, the completely conclusion reached the storm commenced that proper possible and reasonably expected could is not have been should jury. feldspar re- made put mats out the