49 P.2d 44 | Wash. | 1935
Lead Opinion
STEINERT, HOLCOMB, MITCHELL, and BLAKE, JJ., dissent. During the afternoon of October 23, 1933, plaintiff, Agnes Shumaker, while walking along an aisle in the public market owned and operated by defendant, Charada Investment Company, a corporation, slipped and fell, suffering injuries for which she seeks compensation in this action. Plaintiff contends that her accident was occasioned by the fact that the cement floor on which she was walking was wet; that this condition caused her to slip and fall; and that defendant was negligent in permitting the floor to become and remain wet and slippery, and consequently is liable to her for the injuries which she suffered. *522
Defendant, at the close of plaintiff's case, moved for a nonsuit; at the close of the evidence, it moved for judgment in its favor as matter of law; and, after the return of a verdict for the plaintiff, defendant moved for judgment notwithstanding the verdict; all of which motions were denied. From judgment entered in plaintiff's favor upon the verdict, defendant has appealed.
Error is assigned upon the rulings of the court above referred to, and upon the entry of judgment.
In support of its assignments of error, appellant advances two contentions: First, that the record contains no substantial evidence showing negligence on its part; and second, that it should be held as matter of law that respondent was guilty of contributory negligence. Our view of the law applicable to the facts disclosed by the record renders discussion of the second proposition unnecessary.
Appellant has for some time owned and operated a public market in the city of Tacoma, renting space therein to different merchants for display and sale of their wares. The establishment fronts on Market street, at its intersection with Eleventh street. Along the front of the market, were long narrow tables (used for the display of green vegetables), such as are commonly used for display of such produce, the line of tables being broken by passageways. Back of the tables was a wide aisle, running parallel to Market street, and, on the other side of this aisle, there were other stalls and counters facing on two long aisles lying perpendicular to Market street. Respondent fell somewhere in or very near the aisle lying back of the narrow tables in the front of the market, there being some dispute between respondent and one of her witnesses as to the exact point where respondent met with her accident.
It appears from testimony introduced on behalf of *523 respondent that the vendors of fresh vegetables, whose places of business occupied the front of the market and bordered on the aisles upon one of which respondent fell, were accustomed to sprinkle water over their merchandise at frequent intervals, and that the floors in that part of the market were, as a result of this practice, often damp or even wet. In addition to using sprinkling cans, the vendors often washed celery and other vegetables in open tubs or buckets, which had a tendency to throw additional water on the floor. Appellant employed a manager, who had under him two janitors, one of whom was always on duty during market hours, whose business it was to keep the floors in good condition, picking up trash found thereon and sprinkling sawdust over wet spots and then sweeping the same away. It was not raining on the day of the accident, so any water which was on the floor must have come from within the market itself.
Respondent entered the market from an adjoining store. She testified that she proceeded down one of the long aisles toward Market street, stopping at a stall to make a purchase. The clerk being busy, respondent walked over toward the vegetable stands above referred to, when suddenly she slipped and fell violently to the floor. Respondent was assisted to a box, where she sat down, and while in that position, she saw that the floor where she had fallen was wet. Her feet had left a mark upon the floor, indicating where her foot had slipped.
The floors of the market were ordinary cement floors, and it is not contended that there was any unusual hazard incurred by patrons walking over them, respondent arguing only that the floor was slippery because at the place she fell it was wet.
There is some testimony in the record to the effect that appellant's agents had been advised of the fact *524 that the floors of the market were frequently wet and were, in consequence, slippery. On the other hand, it is not disputed that appellant's employees devoted considerable time to cleaning and mopping the floors and generally caring for the comfort, safety and convenience of patrons of the market. From four to six thousand persons walked through the market each day, as many as twelve thousand visiting it on exceptionally busy days.
Respondent had visited the market on many occasions previous to the date of her injury, and had never noticed any water on the floor of the aisles near the point she fell. Respondent knows little of the accident which resulted in injuries to her, save that she slipped and fell, and that, after she had been assisted to a neighboring seat, she noticed that the spot where she fell was wet. It may be assumed that the floor of the market was often wet, as the result of the use of water by the merchants in freshening their wares, as above set forth. On rainy days, doubtless the floor would be wet both from seepage and from water carried in by patrons.
[1] It is true, as argued by respondent, that, in passing on a motion for judgment notwithstanding the verdict of a jury, no element of discretion is involved. Such a motion may be granted only when it can be judicially determined, as matter of law, that there is neither evidence nor reasonable inference from evidence to sustain the verdict. Nelson v. Booth Fisheries Co.,
[2] It is undoubtedly the law that one who operates *525
a store or place for the general sale of merchandise invites the public to frequent his place of business, and that he owes to his patrons the duty to maintain his establishment in a reasonably safe condition. What is a reasonably safe condition, of course, depends upon the nature of the business conducted and the circumstances surrounding the particular situation. In the case of Stone v. Smith-Premier Typewriter Co.,
"The law requires a storekeeper to maintain his storeroom 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."
In the case at bar, the jury inspected the premises and, of course, in returning their verdict, were entitled to consider the evidence in the case in the light of the knowledge which they gained during such examination.
Respondent relies upon the case of Wiard v. Market OperatingCorp.,
In the case at bar, an entirely different situation is presented. Assuming that the floor of the aisles in appellant's market was often damp or wet, can it be held that this constituted a dangerous condition, and one so liable to cause injury to appellant's patrons as to render appellant responsible to respondent in damages? Respondent testified that she had walked along the aisle upon which she fell on hundreds of occasions prior to the day she was hurt, and she was consequently thoroughly familiar with the situation. If the floor was wet, it must be held that she should have observed this condition. Respondent did not, as did the plaintiff in the Wiard case,supra, slip upon a small greasy spot, which she might well have not observed, but, on the contrary, respondent was at great pains to prove that much of the floor of the market was generally wet, and, indeed, that this was its common and ordinary condition.
In the case of Cornwell v. Kresge Co.,
In the case of Bridgford v. Stewart Dry Goods Co.,
"Certain it is that the mere fact the floor was moist or damp did not render it so dangerous as to require of defendant in the exercise of ordinary care for the safety of its customers that it should place barricades across the entrance to the basement and prevent its use altogether until the floor was entirely dried out. We are inclined to the opinion that proof simply that an ordinary wood floor in a well lighted room is moist or damp is no evidence that it is not in a reasonably safe condition for use, but, if mistaken in that, we are quite sure that one who uses such a floor with full knowledge of its condition assumes any and all risks incident to its use. We are therefore of the opinion that the trial court did not err in directing a verdict in favor of the defendant."
In the case of Kraus v. Wolf,
"A small pool of water in a slight depression, caused by wear, on the surface of an outdoor step, creates no dangerous condition, and reasonable care did not require the defendant to prevent or remedy such condition," *528
and reversed a judgment entered upon the verdict of a jury in favor of a woman claiming injury as a result of the condition referred to.
In the later case of Miller v. Gimbel Bros.,
"The cause of plaintiff's fall is not shown by any direct evidence. It does not appear that the plaintiff slipped upon the mud at the door or that the movement of the door was impeded. We may assume that rainwater may make the smooth sloping floor somewhat more slippery than if the floor were dry. None the less it does not appear that the floor even when wet was dangerous. The owner of a store must take reasonable care that his customers shall not be exposed to danger of injury through conditions in the store or at the entrance which he invites the public to use. He cannot prevent some water and mud being brought into an entranceway on a rainy day and he is not responsible for injuries caused thereby unless it is shown that the construction of the store is inherently dangerous or that he failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions. That has not been shown here."
The judgment in favor of the plaintiff entered on the verdict of a jury, which had been affirmed by the appellate division, was reversed and the action dismissed.
The appellate division of the supreme court of New *529
York, in the case of Abbott v. Richmond County Country Club,
"Such a condition as is presented in the case at bar is not sufficient to charge a reasonably prudent person with the duty of foreseeing that one in the exercise of ordinary care using the floor would be exposed to danger,"
and reversed the judgment of the trial court, holding as matter of law that the plaintiff could not recover. The decision of the appellate court was affirmed by the court of appeals of New York,
The supreme court of Ohio, in the case of Kresge Co. v.Fader,
The United States circuit court of appeals for the fifth circuit, in the case of Batson v. Western Union Telegraph Co.,
"Here there was no foreign substance wrongfully on the floor, lying unobserved there to make a secret hazard known to the proprietor, unknown to the customer, as there was in the case where meat had been dropped and left to lie, or where ice had been allowed to accumulate in an entrance way to form a slippery surface. Neither is this a case of a slippery condition caused by washing and oiling floors in a manner and under circumstances causing danger of which the proprietor knew and the customer did not."
The opinions of the supreme court of Missouri, in the case ofVogt v. Wurmb,
We are of the opinion that no primary negligence was, in this case, proven against appellant. Assuming that appellant knew that water was frequently splashed upon the cement floors of the market, and that these floors were often damp or even wet, it cannot be held that a wet cement floor constitutes such a dangerous condition as to hold the owner maintaining the same responsible as for negligence to one who slips thereon. A wet cement surface does not create a condition *531 dangerous to pedestrians. It is a most common condition, and one readily noticed by the most casual glance.
We conclude that the trial court erred in overruling appellant's motion for judgment in its favor notwithstanding the verdict, and the judgment appealed from is accordingly reversed, with instructions to dismiss the action.
MILLARD, C.J., TOLMAN, GERAGHTY, and MAIN, JJ., concur.
Dissenting Opinion
Although there are two questions in this case, the prevailing opinion discusses and rests upon but one. Since that is the crucial question here, however, I shall, likewise, limit myself to the same question. That question is whether there was sufficient evidence to sustain the verdict.
Although the appellant made a motion for new trial as well as for judgment notwithstanding the verdict, the motion for new trial was not passed upon by the court, and the assignments of error are based exclusively on the denials of the motion for nonsuit, the motion that the case be taken from the jury and judgment entered for defendant [appellant], and the motion for judgment notwithstanding the verdict. Since the appellant did not stand upon its motion for nonsuit but proceeded to introduce evidence, the matter must now be viewed from the standpoint of the motion to take the case from the jury and enter judgment for defendant, and the motion for judgment notwithstanding the verdict. Alkire v. Myers Lbr. Co.,
Coming to the one question here involved, the majority opinion frankly concedes that it is the settled *532 rule in this state that, in passing on a motion for judgment notwithstanding the verdict of a jury, no element of discretion is involved; that such motion may be granted only when it can be judicially determined, as a matter of law, that there is neither evidence nor reasonable inference from evidence to sustain the verdict; and that, in ruling on such motion, the evidence will be viewed in the light most favorable to the party who won the verdict.
A very important factor in this case, and one that must not be lost sight of, is that the jury viewed the premises (at appellant's own request) and saw the condition of the floor of the market at the time of the trial. The jury, therefore, was able to observe whether the floor was smooth or rough and particularly whether it had become worn to such a degree as to form depressions that would permit water to collect and stand in pools. If water was actually standing in pools at the time, further observation would, of course, be unnecessary. If the floor happened to be dry at the time, the jury could then by inspection determine whether there were, nevertheless, depressions in which water would collect. In either event, the jury actually saw what this court cannot, from the record, see.
Now, it does appear from the record that the market had been built in 1929, and that from four thousand to six thousand people frequented it daily, and that, on exceptionally busy days, as many as twelve thousand people visited it. What the effect of that many people tramping the floor daily would have upon it in that length of time, was something that could best be determined by looking at it, which the jury did.
The record is replete with evidence to the effect that the Japanese tenants not only used sprinkling cans throughout the day, but also at various times placed wooden tubs, containing water, in the aisles, and that *533 water for the cans and tubs was obtained from a faucet in the immediate vicinity. The record also shows, by the testimony of a number of witnesses, that water was allowed to run over and stand in the aisles to such an extent that, unless customers had on good shoes, their feet would get wet.
The majority opinion even concedes that there was "some testimony in the record to the effect that appellant's agents had been advised of the fact that the floors of the market were frequently wet and were, in consequence, slippery." That it was slippery, is shown by the fact that, when respondent fell, her heel left a skid mark from one and one-half to two feet long. Appellant admitted in its answer that,
". . . at times said vendors [the Japanese] wash celery and other vegetables in open tubs and buckets filled with water in said aisle or walk-way, and that water from said tubs slops over on said aisle or walk-way, making the same damp or wet,"
but asserted that this practice took place exclusively early in the morning, and that thereafter, prior to noon of each day, all wet and damp places in the aisles were covered with sawdust, which absorbed the water and left the aisles substantially dry.
This admission by the appellant was communicated to the jury in the instructions given by the court, and whether the practice of allowing water to run over the aisles was confined to the forenoons or continued through the afternoons became a question of fact on which the evidence was in conflict. It is a fact that the janitors made their rounds of the market in the afternoons, and it is also a fact that, almost immediately after the respondent was injured, a janitor appeared and put sawdust on the spot. So it must have been wet at the time. The janitors made their rounds every half-hour, which, for argument sake, it may be conceded *534 was often enough for the discharge of their ordinary duties.
But the negligence of the appellant consisted in what the jury may have found to be a defect in the floor, one that would permit water to collect in pools. If that was the case, then half-hourly inspections were not a sufficient protection to the public, whose visitations were constant. A dangerous condition is not alleviated by periodic inspections. Between inspections, many accidents could happen, just as this one happened. The law upon the subject of the duty of storekeepers is as stated in Stone v.Smith-Premier Typewriter Co.,
"The law requires a storekeeper to maintain his store room 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." (Italics mine.)
The duty is to maintain the premises in such a condition as a reasonably careful and prudent storekeeper would deem sufficient, not simply to make a periodic inspection of what may be an unsafe condition. Moreover, it is not the law that a storekeeper may permit a dangerous condition to exist and then excuse it by saying that reasonably careful and prudent storekeepers would permit such condition to continue. In any event, it would be for the jury, and not for the court, to say whether, under the evidence, the condition was such as reasonably careful and prudent storekeepers would deem sufficient to protect their customers.
The gist of the majority opinion appears to be contained in a statement put in the form of an interrogatory, as follows: *535
"Assuming that the floor of the aisles in appellant's market was often damp or wet, can it be held that this constituted a dangerous condition, and one so liable to cause injury to appellant's patrons as to render appellant responsible to respondent in damages?"
The opinion does not answer the question directly, but, after quotation from a number of authorities thought to be controlling, concludes by saying:
"We are of the opinion that no primary negligence was, in this case, proven against appellant."
Coming directly to the question propounded by the majority, the answer to it is, in my opinion, simply this: The court may not say, as a matter of law, that such a condition was dangerous or one so likely to cause injury to appellant's patrons as to render appellant responsible in damages; neither can the court say, as a matter of law, that such a condition was not dangerous and would not render appellant liable. It was a question of fact for the jury to determine, under the circumstances shown by the evidence. A part of that evidence was the physical condition of the floor as found by the jury on inspection. The jury did the very thing that it was called upon to do, namely, to determine whether, under the circumstances, it was dangerous to permit the floors to remain wet and damp to the extent, as the jury may have found, that water was allowed to collect in pools.
On the motion for judgment notwithstanding the verdict, the trial court, who heard and saw the witnesses, determined that there was evidence to sustain the verdict and, therefore, evidence from which the jury could conclude that, under the circumstances, the condition was so dangerous as to render appellant liable.
In the face of all that, this court, which has neither seen the premises nor heard nor seen the witnesses, *536 says, as a matter of law, that the condition, under all the circumstances, and contrary to the finding of the jury, was not so dangerous as to render appellant liable. It seems to me that this court has either invaded the province of the jury or else that it must be held that a slippery condition occasioned by water can never be considered as the product of negligence. It must be conceded that a broken hip occasioned by slipping on a wet floor is just as serious as one occasioned by slipping on a greasy floor. And it should also be conceded, I think, that, if a storekeeper negligently permits water to collect or stand on his premises to which the public is invited, when by reasonable care he could have prevented it, he should be liable.
I shall now briefly refer to the cases considered in the majority opinion upon the subject under discussion.
In Wiard v. Market Operating Corp.,
The next case is Cornwell v. Kresge Co.,
The next case is that of Abt v. Leeds Lippincott Co.,
The case of Bridgford v. Stewart Dry Goods Co.,
The case of Kraus v. Wolf,
"A small pool of water in a slight depression, caused by wear, on the surface of an outdoor step, creates no *538 dangerous condition, and reasonable care did not require the defendant to prevent or remedy such condition."
Whether the action was against a shopkeeper or the owner of a private residence, is not disclosed. Whether the plaintiff was an invitee for business purposes, or a casual caller, or a trespasser, we are not told. Whether it was raining at the time or whether the sun was shining, does not appear. In any event, it was an outdoor step, and not inside the building at all. That case has no bearing upon the facts presented in this case.
The next case is that of Miller v. Gimbel Bros.,
The case of Abbott v. Richmond County Country Club,
"No actual defect in the floor was claimed upon the trial other than that it was smooth and slippery, though the plaintiff had used it upon several prior occasions and knew of itscondition." (Italics mine.) *539
It was shown that the flooring was the customary one used in golf club locker rooms, and that it had been covered with linseed oil to prevent dust. There was no evidence of any defect in the floor. In the case at bar, the worn condition of the floor was directly in issue.
The next case cited is that of Kresge Co. v. Fader,
In Batson v. Western Union Telegraph Co.,
In Vogt v. Wurmb,
The last case cited is that of Jones v. Kroger Grocery Baking Co.,
I have analyzed all the cases on which the majority opinion relies, and assuming that they were all correctly decided, I do not see how they are applicable here.
In this case we have as an issue the worn condition of the floor; we have an admission that tubs of water were placed in the aisles and that the water slopped over and rendered the aisle wet; we have evidence that the water on other occasions stood in the aisle; we have evidence that there was a pool of water in which respondent stepped; we have evidence that janitors were supposed to keep the aisles dry; and we have evidence from which it may be inferred that the jury found the floor to be in such condition as would permit the water to stand in pools. How can it be said, in the face of all that evidence, that there was neither evidence nor reasonable inference from evidence that appellant was negligent?
It is suggested in the prevailing opinion that, if water was present on that occasion, respondent herself could have, and should have, seen it. It is not suggested *541 that respondent was guilty of contributory negligence. The opinion does not assert, nor could it assert, that respondent was guilty of contributory negligence, because that would assume primary negligence on the part of appellant, which the opinion emphatically denies. But more than that, the court instructed the jury that a customer in a market under cover was not required to exercise the same degree of care as to where she was walking, or to observe the condition of the floor therein, as she would be required to exercise upon an open sidewalk or street; that the invitation to enter the building was for the very purpose of having the eyes of the customer attracted to goods on display. No error is assigned upon the instruction, and it must, therefore, be taken as the law of the case.
I am convinced that there was evidence to take the case to the jury, and sufficient evidence to support the verdict. I therefore dissent.
HOLCOMB, MITCHELL, and BLAKE, JJ., concur with STEINERT, J. *542