11 N.W.2d 805 | Minn. | 1943
Defendant owned and operated a restaurant known as the Peoples Cafe, in Virginia, Minnesota, at the time of the accident here involved. On February 21, 1942, plaintiff accompanied her former husband, Charles Johnson, on an automobile trip to Eveleth and Gilbert, where he went to inspect lights in connection with his duties as superintendent of a WPA project. They returned to Virginia about midnight, and Johnson parked his automobile at the rear of defendant's restaurant. They then entered the restaurant through the rear door for the purpose of getting a lunch. As plaintiff approached the door Johnson reached in front of her and opened it. The handle of the door was on the left, and the door opened inwardly into the kitchen. After the door was opened plaintiff stepped with her left foot onto the threshold, which is about two inches above the level of the alley. The floor of the restaurant is about six or seven inches lower than the top of the threshold. According to plaintiff's testimony, the first thing she noticed as the door opened was a bright light shining above the head of the chef working in the kitchen. This light was located about 16 feet from, and to the left of, the rear entrance. Plaintiff testified that this was the only light in the kitchen and that she did not see the step *81 because a cupboard located nearby rendered the light around the rear entrance very dim. Johnson also testified that there was only one light. There was testimony for defendant that there were three lights burning in the kitchen, one of which is located directly between the rear entrance and the swinging doors leading into the dining room. As plaintiff was in the act of stepping into the kitchen she fell forward onto the floor and injured her leg.
There was testimony by witnesses for plaintiff that customers of the restaurant were in the habit of parking their automobiles behind the building and entering through the kitchen. Defendant testified that people came through the rear entrance "Once in a great while * * * not very often." A witness for defendant testified that "some" people did enter that way but "seldom during the night." Plaintiff had never been in the restaurant before, but Johnson had been there on other occasions. There was no sign outside the rear door warning of the step down into the kitchen or indicating that customers were not to use that entrance.
1. The rules pertaining to the granting of judgment notwithstanding are clearly stated in Kingsley v. Alden,
In Sheehy v. M. St. L. R. Co.
"* * * To entitle the defendant to judgment notwithstanding the verdict, it is not sufficient that the verdict be manifestly against the preponderance of the evidence. 'The disputed evidence must conclusively establish a state of facts from which no other reasonable *82 inference can be drawn, except that the deceased was guilty of contributory negligence.' "
A motion for judgment notwithstanding should not be granted where there is clear conflict in the evidence. Hess v. G. N. Ry. Co.
2. The verdict of the jury in the present case was necessarily predicated upon a finding that defendant was negligent in the maintenance of his premises and that plaintiff was not contributorily negligent. In order to charge defendant with negligence, it must appear that there was a duty on his part which was not discharged; that such breach resulted in injury to the plaintiff; and that she was a member of the class to whom the duty was owing. 4 Dunnell, Dig. Supp. § 6973, and cases cited. The duty which was owing in this case was that of an owner or occupant of premises to exercise ordinary or reasonable care to keep them in a safe condition for those who might come upon them by express or implied invitation. 3 Cooley, Torts (4 ed.) p. 186, § 440; Radle v. Hennepin Avenue T. R. Co.
That plaintiff was a member of the class to whom defendant owed the duty of keeping his premises in a reasonably safe condition is *83
not here disputed. Nor is it seriously contended that plaintiff in entering through a rear door went beyond the limits of her invitation to come upon the premises. An implied invitation to use the rear entrance may be drawn from the facts that others had previously used it and that there was no sign or other warning prohibiting its use. In Jewison v. Dieudonne,
3. Defendant contends, however (1) that there was no breach of duty on his part which resulted in injury to plaintiff, and (2) if there were such a breach, plaintiff's negligence contributed to her injury.
The memorandum of the trial judge attached to the order granting defendant's motion for judgment states:
"It is difficult to see where there was any negligence in this case. It seems to me the mere fact that there was a step down of some six or seven inches is not sufficient,standing alone, to constitute negligent construction." (Italics ours.)
Plaintiff here has charged negligence on the part of the defendant not only in permitting the drop of seven inches at the entrance of his restaurant, but also in failing to place signs outside the building warning of this condition and in failing properly to light the entrance. Although there was a conflict in the testimony as to lighting conditions, there is evidence in support of plaintiff's charge. Plaintiff testified that "it was dark in this corner as the door opened." In answer to the inquiry, "As the door did open, state to the jury whether it was light in that portion immediately surrounding the door or dim," plaintiff answered, "No. Dim." On *84 cross-examination she testified, "There is something there that keeps the light from this place where I fell." In answer to the question, "And did that light that you are talking about now light up the entrance that you came in, or was it dim there?" Johnson testified, "No. That is dark because there is a table in there where they store dishes or whatever is there which has shelves on it, which sheds it off."
In Albachten v. The Golden Rule,
A fact situation more analogous to the one here involved was presented in Wood v. Prudential Ins. Co.
Thus the rule would seem to be that in cases where the only factor upon which the charge of negligence is based is an abrupt change of floor levels there is not sufficient evidence of lack of due care to require submission of the issue to the jury. However, where there are several factors in addition to the change in floor levels, a fact issue on the question of defendant's negligence in the maintenance of his premises is presented. It appears to us that defendant's failure to place warning signs and his failure to provide adequate illumination were sufficient elements of negligence in addition to the change in floor levels to make an issue of fact for the jury.
Assuming negligence on the part of defendant, plaintiff would still be precluded from recovery if it appears, as a matter of law, that she was guilty of contributory negligence, thus justifying the order of the trial court granting judgment for defendant. Plaintiff was bound to exercise due care for her own safety. The duty *86
of defendant toward her as an invitee did not put him in the position of an insurer of her safety nor did it excuse her from acting as an ordinary prudent person would under the circumstances. Plaintiff cannot be held guilty of contributory negligence as a matter of law unless the clear and undisputed evidence on the issue is such that reasonable minds could arrive at no other conclusion. Weyhe v. Minneapolis St. Ry. Co.
Do the facts in the present case show the same utter lack of care as that presented in the cases referred to? Plaintiff had never before been in defendant's restaurant. Her companion had been in the restaurant on previous occasions and proceeded as if there were no danger. There were no warning signs and no indications that the rear door was unsafe. When the door was opened the room appeared to be an ordinary kitchen into which she could proceed with safety.
In any event, from the evidence the jury, in passing upon the question of plaintiff's contributory negligence, could find the facts to be as stated. We cannot say, as a matter of law, that plaintiff acted otherwise than as an ordinary prudent person would have acted under the same circumstances. Whether she should have done more than she did for her own safety was a fact question.
Order granting judgment notwithstanding verdict reversed and case remanded for disposition below of the motion for new trial.
Mr. JUSTICE LORING, absent because of accidental injuries, took no part in the consideration or decision of this case.