Plaintiff appeals a judgment for the defendant in an action for damages sustained when her foot slipped on a grape and she fell to the floor of the produce department of a supermarket.
The trial court granted the defendant’s motion for a judgment notwithstanding the verdict, even though the defendant had failed during the trial to move for a directed verdict. The error in so ruling is
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manifest. ORS 18.140(1);
①
Merritt v. S.I.A.C.,
The defendant did challenge the sufficiency of the plaintiff’s evidence by a timely motion for a judgment of involuntary nonsuit, but that motion was overruled. As will be seen, that ruling was in error. The defendant thereupon rested without putting on evidence. Defendant, upon resting, should have moved for a directed verdict as required by ORS 18.140 if it wanted to preserve the point for a motion after the verdict. Defendant failed to make such a motion, and the case went to the jury. The jury returned a verdict for the plaintiff, and the defendant moved the court to set aside that verdict and to enter a judgment for defendant. The defendant also moved, in the event its motion for judgment n.o.v. was denied, for a new trial under ORS 17.610(7), calling attention to the earlier error in denying the nonsuit. The alternative motion, which would have been well taken, was never ruled upon, despite the requirement of ORS 18.140(3) that the court record its ruling even though it grants judgment n.o.v.
There was no evidence that the defendant had placed the grape on the floor, or had knowledge that the grape was on the floor, or had allowed the floor to remain unclean for any appreciable time. There was thus no evidence of a want of due care in keeping the floor clean. We have not yet adopted the rule of
res ipsa loquitur
in “slip and fall” cases, and it is still necessary to supply some proof of fault. Under
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our decisions, therefore, the motion for a judgment of involuntary nonsuit should have been allowed. By the same rules, moreover, a motion for a directed verdict, if one had been made, would have been well taken.
George v. Erickson’s Supermarket, Inc.,
The court allowed the motion for the judgment n.o.v., apparently upon the mistaken ground that there had been a motion for a directed verdict. This mistake was undoubtedly the product of a misreading of the record by the defendant. The court was correct, however, in its view that there had been no evidence of negligence. (Since the defendant had put on no evidence, the plaintiff’s failure of proof had not been cured by the defendant’s evidence.) But the granting of the judgment n.o.v. was error, because the record then made entitled the defendant only to a new trial, not to a judgment in bar. A trial court has much greater authority to grant a new trial under ORS 17.610 than it has to grant a judgment notwithstanding a verdict under ORS 18.140. See
Strandholm v. General Const. Co.,
In
Merritt v. S.I.A.C.,
supra, we said that ORS 18.140 makes the motion for a directed verdict a prerequisite to a motion for a judgment notwithstanding the verdict. In that case there had been no motion for a judgment of involuntary nonsuit, and the trial court therefore had not been called upon to pass upon the sufficiency of the evidence in any manner. In any event, since the motion for judgment notwithstanding the verdict had been denied, it presented nothing to review upon appeal. When the motion for a judgment n.o.v. has been allowed, the ruling properly can be assigned as error. When the judgment notwithstand
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ing the verdict has been refused, any challenge to the sufficiency of the evidence must have been preserved by a motion for a directed verdict made prior to the submission of the case to the jury.
Clarizo v. Spada Distributing Co., Inc.,
In
Carey v. Leonard,
We have held that, while the practice is not one to be commended, a requested instruction to return a verdict for the defendant can be treated, for the purposes of satisfying OES 18.140, as a motion for a directed verdict.
Becker v. Pearson,
In the case at bar, the trial court entered a judgment n.o.v. (judgment in bar), when it should have entered a nonsuit, or, failing that, on defendant’s alternative motion an order granting a new trial. Now the plaintiff is contending that, because of the defendant’s errors with respect to motions during and after trial, she should carry off the fruits of a verdict that is wholly unsupported by evidence.
The defendant has further complicated the problem by not assigning error in its brief to the trial *339 court’s failure to enter the proper order below. ORS 19.130(2) provides:
“Where in the trial court a motion for judgment notwithstanding the verdict and a_ motion for a new trial were made in the alternative, and an appeal is taken from a judgment notwithstanding the verdict or an order granting a new trial, the Supreme Court may consider the correctness of the ruling of the trial court on either or both motions if such ruling is assigned as erroneous in the brief of any party affected by the appeal, without the necessity of a cross-appeal.”
As noted in
Bonnevier et ux v. Dairy Coop. Ass’n,
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Both parties are contending for more relief than that to which they are entitled. The plaintiff would have us hold that, because of the defendant’s failure to brief the new-trial point as a special assignment of error, the defendant should be required to pay a judgment wholly unsupported by evidence. The defendant, on the other hand, seeks to excuse its omissions by saying that the judgment entered below was one which, under Oregon Constitution, Art VII, § 3 (Amended), can be affirmed regardless of error because it is the only judgment justified under the evidence. There is some support for that view. See, e.g.,
Rosenwald v. Oregon City Transp. Co.,
To enter such a judgment in this court as prayed by the defendant would, however, tax the plaintiff unfairly with costs. We believe the better remedy is to enter the order the trial court should have entered on the defendant’s alternative motion, and remand the cause for a new trial.
Reversed and remanded.
Notes
ORS 18.140(1). “* * * [W]hen a motion for a directed verdict which should have been granted has been refused and a verdict is rendered against the applicant, the court may, on motion, render a judgment notwithstanding the verdict * *