49 P.2d 958 | Utah | 1935
Lead Opinion
In this case the jury returned a verdict in favor of the plaintiff for $1,570 as damages for injuries caused by alleged negligence in maintaining a cracked showcase. The material facts are as follows: The defendant and appellant on the 18th day of May, 1932, and prior thereto, conducted a general mercantile store in Ogden City. On that day about 4 o'clock in the afternoon, plaintiff entered defendant's store to buy some dress materials. She was approximately six months pregnant at that time. As she proceeded west down the south aisle of said store, she turned sidewise, *437
facing the counter which formed the north side of the aisle in order to pass three persons who were standing therein. In so passing she felt a pain in her abdomen. Upon looking down, she found that she was cut and was bleeding considerably. It was found that a triangular splinter of glass about one inch at the base and running into a point over a distance of about three inches had pierced her abdomen. There was evidence of the damage to her clothes, to her person, of mental suffering, expense, etc. The jagged piece of glass which punctured her abdomen came from one of the removable glass panels which were set up perpendicularly the entire length of the showcase. These panels were about two feet in length and were joined end to end and their joinings held together by risers or clamps which held the glass in the groove. The clamp is held by a couple of screws. The young lady who tended the counter testified that on the morning of the day the accident happened she had taken out the glass and washed it and putt it back. This she did once or twice a year. This was the first time in eight months that she had tended that counter that she had taken the glass out and washed it. There was no evidence as to how the glass got cracked, or how long it had been cracked before the plaintiff was cut by it. The plaintiff's evidence did not go any further than to show that the plaintiff had been injured by this piece of glass penetrating her abdomen while she was brushing up against the counter. Appellant contends that this case is directly controlled by the case of Quinn v.Utah Gas Coke Co.,
We cannot see how this case differs from the Quinn Case. In that case a bottle of ink had spilled, and plaintiff's dress was damaged by ink running upon it. In this case there was a cracked panel in the showcase and the person of plaintiff was injured. In neither case did any one know how the ink 1-4 was spilled or the glass broken. In both cases the cause of the spilled ink or the broken glass may have been caused by the customer who was damaged or by another customer, or may have been caused by some representative of the company without negligence and unnoticed when it was done, or, in both cases, it may have been caused by the negligence of the company through a servant. The difficulty is that it is in the realm of speculation, and under such circumstances the doctrine of res ipsa loquitur cannot apply. It applies where the thing from or by which the apparent negligence speaks is shown to be under the control or the management of the store and the accident is such, as, in the ordinary course of things, does not or would not happen if those who had the management used the proper care. Where the way in which the accident happened warrants an inference of negligence, then the mere happening speaks for itself. Even then it is only evidence from which the jury may infer negligence. It is not negligence in law. See Williamson
v. Salt Lake Ogden R. Co.,
"Common experience shows us all that a sound, well-kept floor would not ordinarily, in walking across same, injure a person's foot, through the sole of the shoe, as the evidence tends to show in this case."
It is impossible to tell from this case just what type of splinter entered the plaintiff's foot. If the situation showed that the piece of the floor which penetrated her foot was such as could not have been dislodged or made by other customers, but raised an inference only of a poorly kept floor, then it comes under the plaster case. If not, then it appears to us it should come under the doctrine of the Quinn Case. In Wine v. Newcomb,Endicott Co.,
For the reasons above given, we conclude that there is no evidence of negligence on the part of the defendant, and that the defendant was entitled to a nonsuit or to 5 a directed verdict when a nonsuit was not granted. The judgment of the lower court must therefore be reversed.
The defendant also assigns as prejudicial error permitting answers to certain questions. As the questions are apt to occur in a retrial, we shall consider these assignments *442 as a guidance to the court should they again be asked. On cross-examination, Mr. Peterson, a witness for the 6, 7 defendant, was asked, "Do you, Mr. Peterson, claim that Mrs. Jenson broke this glass?" the court admonishing him to answer "Yes" or "No." Ordinarily the version, theory, or belief of any witness as to the cause of an accident is immaterial and might be highly prejudicial. On cross-examination it might be, under certain circumstances, material. Proper cross-examination does not necessarily mean that every question shall be directly material to the issues of the case. Cross-examination is the detective of the courtroom. It may be used to examine as to the credibility of testimony given or as to the credibility of the witness as a vehicle for transmitting the testimony, granted it is not too remote or the law of diminishing returns from such cross-examination has not set in. But in every case it must either tend to modify, contradict, explain, deny, or elaborate testimony of the witness in chief, or something which has been previously brought out on cross-examination, which itself was proper cross-examination. This question performed none of those offices. It is not related to anything which he testified to on direct examination or on cross-examination in any of these respects. Whether it was prejudicial error is not necessary to consider in the light of the fact that the judgment must be reversed on other grounds.
The same witness was asked, "Will you tell this jury how that lady (the plaintiff) could break that glass in the manner you have described it was broken?" The question was objected to on the ground that it was incompetent, irrelevant, and immaterial, and that it was a matter of opinion, and 8 that this witness was not an expert. It would hardly need the opinion of an expert to answer that question. It might need the opinion of an advantaged observer in order to aid the jury. But the question was improper because the witness had not testified on cross-examination that "the lady" had broken the glass, but only *443 that she said that she had "evidently broken it." Therefore, it was not proper cross-examination under the rule above stated because it did not tend to elaborate or in any way explain or modify or contradict any of his statements as to what he had been told by "the lady." Under rare circumstances such a question might go toward affecting the credibility of a witness. It may in certain cases be proper to ask a person to illustrate how something could have happened in the manner in which the witness claims he was told it happened, in order to show that he must have known that such a statement was ridiculous, and therefore his reaction would have been such as to call for some response from him in that regard, which, if he had not made, might tend to show that the statement itself was never made. But this question did not fall under that category. The question does not call for an illustration or description of the manner in which "the lady" told him the glass was broken, but calls for a description as to how it could have been broken in the manner he had "described it was broken," when he had not in any manner described how it was broken.
Plaintiff was asked in rebuttal, "Did you state to Mr. Peterson, the man who testified here, that you crowded against the glass and evidently broke it?" This was objected to on the ground it was incompetent, irrelevant, and immaterial, an improper impeaching question on an immaterial 9 matter, and was not proper rebuttal. The objection was not well taken. The real error lay in the fact that Peterson was asked to answer whether he claimed that Mrs. Jenson broke the glass. When he was required to answer that question he had to answer that he did not claim that she had broken the glass, but that she said she had broken it. It necessarily drew in an admission on her part.
The plaintiff would be permitted to rebut such admission. The question was not aimed at impeachment, but at rebuttal. The difficulty was that the first error above mentioned opened the way for what followed; but the door having been *444 opened, and Peterson therefore having necessarily testified as to what was in effect an admission the plaintiff must be permitted to rebut it.
The plaintiff on rebutttal was asked, "Did you have any conversation with Miss Melba Olson concerning this glass at that time?" to which the defendant objected as being incompetent, immaterial, and irrelevant and not proper rebuttal. Miss Melba Olson was not a witness. She had evidently 10 been an employee of the company and was outside the state. Over objection, the witness answered that Miss Olson had said, "When she pulled the glass out she said that the girls often cut their fingers in reaching over to get some article; that there was a sharp or jagged piece or a nick in the glass and they very often cut their fingers." The question was palpable improper. As to what Miss Olson had said was hearsay. It could not have been an admission on behalf of the company. It is doubtful even if it had been competently offered that it would have been material. What might have happened with the glass on other occasions would hardly throw any light on the cause of this breakage or the time it had remained in its broken state.
This disposes of assignment Nos. 5, 6, 7, and 8. The defendant excepted to instructions Nos. 8 and 10 in its assignments Nos. 9 and 10, respectively, but did not 11 argue in its brief assignment No. 10. Instruction No. 8 reads:
"In determining whether the defendant was negligent in maintaining the show case, you may consider the question whether or not it was cracked or broken, and, if so, whether or not the defendant knew or by the exercise of ordinary care should have known it was cracked or broken and whether or not the defendant failed to give the plaintiff warning or notice of such condition; and all the circumstances in evidence, and from them you should determine whether or not the defendant was negligent."
The instruction was erroneous, not exactly on the ground argued by the defendant, but for the reason that there is *445 no evidence that the defendant was negligent. Therefore, it was improper to predicate an instruction upon the theory that the jury might consider certain things to determine whether the defendant was negligent. While, had it been otherwise proper, it would have been better for the court to have added after the word "negligent" in the last line of the instruction, the words "in the manner alleged in the plaintiff's complaint," yet such omission was not prejudicial or very material, as claimed by appellant, especially in view of instructions Nos. 9 and 11, which held down the question of negligence to the specific allegations of negligence alleged in the complaint.
The judgment of the lower court is reversed, and the cause remanded for a new trial. Costs to appellant.
ELIAS HANSEN, C.J., and FOLLAND, and EPHRAIM HANSON, JJ., concur.
Concurrence Opinion
I concur in the result.
