55 P.2d 1058 | Wash. | 1936
Lead Opinion
HOLCOMB, J., dissents. The purpose of this action was to recover damages for personal injuries. The cause was tried to the court and a jury, and resulted in a verdict in favor of the plaintiffs in the sum of $750. The defendant made a motion for judgment notwithstanding the verdict, which was denied, and, from the judgment entered upon the verdict, appeals.
The appellant, the Pacific Outfitting Company, is a corporation organized under the laws of this state, with a place of business in the city of Seattle, where it sells, at retail, ladies' and men's apparel. December 19, 1932, the respondent Grace Riley, who will be referred to as though she were the only party respondent, entered the store and inspected certain articles in the ladies' department, having in mind making purchases either on that day or at some future time. After looking over some articles, she went to the cashier's office, which was in the back part of the building and up a short flight of stairs, for the purpose of getting a check cashed. The space around the cashier's office and extending to the head of the stairs was covered with linoleum.
As the respondent was returning from getting the check cashed, she fell from the top of the stairs and sustained the injury for which recovery was sought. She says that she caught the heel of her right shoe on something extending up from the floor on which the linoleum was laid, and at the time her left foot was on the first step down.
Whether there was a metal strip on the tread, is in dispute. It is admitted that there was such a strip on *499 the facing of the steps. With reference to the manner of the happening of the accident, the respondent testified:
"Q. Now had you had occasion before that to notice what kind of an arrangement they had to bind the linoleum at the edge of the floor level just before you stepped down to the first step? A. Well, there was something there that caught my heel, that is all I know. I had often times noticed there were metal facings (indicating a metal strip on what could be called the facing of the tread, extending back up and over onto the surface of the tread)."
On cross-examination, the witness further testified as follows:
"I felt my heel catch on something up on the floor level of the cashier's floor. It was something that projected up. Q. And something that you saw projecting up? A. Well, it felt that way. Q. It felt like something was projecting. You did not go back and examine it, did you? A. No, sir. Q. So you really do not know what it was that your heel caught on if it caught on anything? A. Well, it caught on something. Q. You felt that it caught on something? A. Yes."
She further testified as follows:
"Q. You swear that there was a piece extending over on to the ____ A. Yes. Q. And it was that piece that extended over ____ A. Yes. Q. ____ which you think caught your heel? A. Yes."
After the accident, there were three parallel scratches on the inside of the heel of the right shoe, and, as one witness said:
"They were heavier up at the top than they were at the bottom, in the nature of an exclamation point."
Immediately after the accident, the respondent stated that she had "caught her foot." The respondent, in her brief, states:
"Appellant seeks to make it appear that respondent's evidence merely showed a fall, and nothing else. *500 Mrs. Riley's statements upon cross-examination (St. 16, line 30 to St. 17, line 6) refute this and were in and of themselves sufficient to make a case for the jury on this point. In addition, her testimony as a whole, considered in the light of her res gestae statements, plus the marks on her shoe-heel, conclusively showed the cause of her fall."
[1] But evidence which shows the cause of her fall does not establish liability, because the mere happening of the accident was not sufficient of itself to make out a case of negligence. The doctrine of res ipsa loquitur does not apply to a claimed defective condition of a stairway or floor in a building.Chilberg v. Standard Furniture Co.,
The cases of Anderson v. McCarthy Dry Goods Co.,
[2] The law requires a storekeeper to maintain his storeroom, including stairways, in such a condition as a reasonably careful and prudent storekeeper would deem sufficient to protect customers from danger while exercising ordinary care for their own safety. He is not an insurer of the safety of the customers that enter the store. Watson v. Zimmerman,
Where negligence is predicated upon the alleged failure to keep the premises in repair, it is necessary, in order to establish liability, that it be shown that the defective condition has either been brought to the notice of the defendant or has existed for such time as would afford sufficient opportunity to make proper inspection and repair any defects that might exist.
In 45 C.J. 866, it is said:
"Where negligence is predicated upon the failure to keep the premises in repair, it must be shown that the defective condition has either been brought to the notice of defendant or has existed for such time as would have afforded sufficient opportunity to make proper inspection of the premises to ascertain their condition as to safety and to repair their defects. A like rule has been applied in the case of a slippery condition resulting from snow or ice, or water, or other substances, or to snow or ice falling from a roof."
In the case of Schnatterer v. Bamberger Co.,
"When the plaintiff rested her case it had not appeared that the defendant company had been guilty of any want of reasonable care in the keeping of its store safe for her use, for the reason that she had failed to show that the defective condition of the brass edging which she said existed on the night of the accident of April 24th had either (a) been in fact brought to the previous notice of the defendant, or, failing in proof of such actual notice, that (b) the defect had existed for *502 such space of time before that occurrence as would have afforded the company sufficient opportunity to make proper inspection of its stairways to ascertain their condition as to safety, and to repair their defects. In the absence of proof of either, the legal presumption is that defendant had used reasonable care."
The case of Wiard v. Market Operating Corp.,
There are cases, such as Bennett v. Jordan Marsh Co.,
There are some cases that appear to hold that the fact of the injury, traced to a particular defect, may make a prima facie case, but it is unnecessary to give further attention to these cases, because, as already pointed out, the rule in this case is otherwise.
It follows that, from the facts above stated and the testimony as to the manner in which the accident happened and the applicable rules of law, there was no question in this case to go to the jury.
The judgment will be reversed, and the cause remanded *503 with directions to the superior court to dismiss the action.
TOLMAN, BLAKE, and BEALS, JJ., concur.
Dissenting Opinion
In my opinion, on the facts stated in the majority opinion, there was a case made for the jury.
I therefore dissent.