177 S.E. 629 | W. Va. | 1934
Plaintiff recovered a verdict and judgment of $10,000.00 for personal injury alleged to have resulted from a fall in a moving picture theater owned by defendant. The fall was alleged to have been caused by a defective condition in a long carpet or runner in an aisle of the theater. Defendant prosecutes error.
The carpet was heavy and was stretched over a pad which was not quite as wide. At both ends and at intervals of several feet along its edge it was fastened to the aisle way with tacks driven into wooden pegs in holes in the concrete floor. There was a tier of seats on each side of this aisle, and the carpet came within a few inches of the base of each tier. *643
The plaintiff and her husband had attended an entertainment at the theater and were starting to leave when the accident happened. Her husband had preceded her into the aisle. According to her testimony, when she attempted to pass from her seat into the aisle, she caught the toe of her foot between the carpet and the pad and fell into and across the aisle, striking her back on a part of an opposite seat.
Plaintiff adduced evidence that where she tripped, the edge of the carpet was raised "about an inch and a half" for a distance of "a little over a foot." There is no evidence that the carpet was torn, twisted, curled, crumpled, propped up, or askew. Why that particular section of the carpet should have been raised is not explained. Its suspension is the more remarkable in view of testimony of one of her witnesses that the carpet was "mighty heavy" and that on the side opposite where she tripped "it was lying smooth on the floor." How long the edge in question was elevated does not appear. Both plaintiff and her husband had walked over this identical section in taking their seats without perceiving an elevation. The husband preceded the plaintiff over the carpet as they left their seats without noticing an elevation. There is no evidence that the defendant knew of it or that there had been any prior disarrangement of the carpet. Lacking any direct proof of proprietorial negligence, the plaintiff invokes the doctrine ofres ipsa loquitur.
Res ipsa loquitur is not an arbitrary formula, but is a phrase of limited application. The mere fact of an accident does not warrant its application. It is applied only when the circumstances attending the accident, without further proof, are such that in the ordinary course of events the accident could not have happened except on the theory of negligence. In such case, the doctrine raises a presumption or permits aninference of negligence on the part of the proprietor. See generally on this subject Cooley on Torts (4th Ed.), sec. 480; Jones Commentaries on Evidence (2d Ed.), sec. 518; Thompson on Negligence, Vol. 8, sec. 7635; Shearman Redfield on Negligence (6th Ed.), secs. 58a and 58b. *644
The mere fact that the defendant's carpet was raised at the moment of accident does not denote that it had been in that condition any certain period prior to the accident. Unless the condition had existed long enough to have given the proprietor opportunity to have seen it in the exercise of due care, he cannot be held liable. "Knowledge either actual or constructive is essential to impose liability." 62 C. J., subj. Theaters and Shows, sec. 47. O'Toole v. Park Ass'n.,
Plaintiff relies specially on our own case ofTruschel v. Amusement Co.,
Defendant presented testimony that the carpet was gone over every morning with an electric sweeper by the *646 janitor, one of whose duties was to report to the manager anything wrong with the carpet; that it was walked over every day just before the theater opened by an usher (with a flashlight) whose duty was "to check the aisle to see that all things were in proper places"; that both employees had performed their duties on the day of (and prior to) the accident and both had found the entire length of the carpet to be flat on the floor; that no repair or adjustment has ever been made on the carpet and it now lies flat and in its proper position on the floor; and that no one else has ever fallen in the theater. None of this testimony was controverted. Counsel would criticize defendant's inspection in that it did not include an examination of the pegs to which the carpet was tacked. That criticism is not apt, because of testimony (uncontroverted) that the tacks were in place, and because there is no evidence throwing suspicion on the pegs.
There is some conflict in authority on whether or not the introduction of evidence by the defendant destroys an inference of negligence as a matter of law (some courts holding that the inference, not being itself evidence, does not raise a conflict with the evidence of defendant for jury decision). But "the application of this doctrine does not affect the general rule, that where the evidence is so clear and convincing that reasonable minds would not differ in their conclusions therefrom, the question of defendant's negligence is for the court and not for the jury, and hence, if defendant's explanation establishes the absence of culpable negligence so clearly as to leave no substantial conflict in the testimony or issuable fact for the jury to pass on, the presumption will be overcome as a matter of law, and if submitted to the jury will authorize the setting aside of a verdict for plaintiff." 45 C. J., subj. Negligence, sec. 784.
If it be conceded that plaintiff's evidence makes a primafacie case, defendant's evidence establishes the absence of culpable negligence so clearly that it overcomes any presumption in her favor as a matter of law, and leaves no issuable fact for jury determination. *647
Because of this view of the case we feel it unnecessary to comment on the other allegations of error.
The judgment is accordingly reversed, the verdict set aside and a new trial awarded the defendant.
Judgment reversed; verdict set aside; new trial awarded.