delivered the opinion of the court.
Mrs. Buckner brought this action against Thalhimer Brothers, Incorporated, to recover damages for injury sustained
The evidence, with such conflicts as developed having been settled by the verdict in favor of the plaintiff, made this case:
The plaintiff, 67 years оld, acompanied by her guest, arrived at the tearoom between 12:30 and 1:30 p.m. There was not a very large crowd there at the time. The hostess or dining room supervisor met them,, led them to tables and seated them.
The design and arrangement of these tables are shown by photographs in evidence and one of the tables was before us in the argument. They are individual tables arranged in a row, with square or rectangular tops. Customers sit behind them on a long bench or couch against the wall. The tables are of metal and each weighs 25 pounds 3 ounces. Each has four legs jоined to the top of the table at its four corners. The two legs at each end curve slightly toward each other and then out again, but no part of any leg projects past a straight line from the corner to the floor. The food is brought out in dishes and placed on a tray which sits between rubber knobs attached to the four corners of the table. The tables are ordinarily placed about nine inches apart but the customers move them closer together or farther apart as they desire. Plaintiff’s friend was seated on her right, two of her witnesses immediately to her left, and the tables at which these four were seated were then close together. The floor of the dining room is carpeted.
In order to seat people behind the tables the hostess or waitress customarily pulls the table out and then pushes it back when the customer is seated, as was done in this instance. Usually the customers move the tables out when they are ready to leave, but this is done for them by the hostess or waitress on request. The plaintiff did not remember that she had ever moved one before.
The tables at which the plaintiff and her friend were seated had soiled dishеs on them. After they had been seated
But whether tbe defendant is to be held responsible for plaintiff’s injury depends on whether, on tbe facts stated and others to be stated, it was guilty of negligence which was tbe sole proximate cause of tbe accident. Tbe jury has decided tbе issues for tbe plaintiff and its verdict has been approved by tbe trial court, but if tbe judgment is plainly wrong or without evidence to support it, it is our duty to set it aside. Code, 1950, § 8-491; Esso Standard Oil Co. v. Stewart,
“Insufficient evidence is, in legal cоntemplation, no evidence. If there is no evidence that ought reasonably to satisfy a jury that the fact sought to be proved is established, then no jury question is presented. * * * Whether there is sufficiеnt proof to sustain tbe claim of tbe party upon whom tbe burden of proof rests is a law question.” Acme Markets v. Remschel,
Plaintiff was an invitee of tbe defendant. Tbe defendant was not an insurer of ber safety but owed ber tbе duty to exercise ordinary ca,re to see that its premises and equipment were in a reasonably safe condition for ber use in tbe manner and to tbe extent that it invited their use. Pettyjohn & Sons v. Basham,
We can sеe no indication of any negligence in tbe design of tbe table furnished to tbe plaintiff for ber use. There is no contradiction of defendant’s evidence that it is tbe “same type of table with maybе a few modifications, but still having tbe four legs and tbe same type of top, that is used in various stores throughout tbe country,” tbe same type as used in tbe large department stores in Washington, York and Boston. Tbe
Plaintiff was asked, “If you had pushed the table a little bit further, you would not have fallen, would you? ” She answered, “I don’t know. You see, the legs of these spread out dicating on table). ’ ’ Actually they do not spread out beyond the cоrners of the table and if the leg she tripped over had been perfectly straight she could just as readily have caught her foot by moving the table as she did and stepping as she did.
The owner of рremises ought not to be held accountable for the negligent' or wrongful use by his invitee of appliances which are safe and harmless if used for the purpose and in the way intended, unless he should reasonably have anticipated the improper use.
An accident which is not reasonably to be foreseen by a man in the exercise of ordinary caution and prudence may not be made the ground of a negligence action. Stephens v. Virginia E. & P. Co.,
In order to hold the owner of premises liable for an injury occurring thereon, “it must have been the natural and probable result of the сondition of the premises, and one which under the circumstances he ought reasonably to have foreseen might probably occur.” Hargrave v. Shaw Land Co.,
“ If an occurrence is one that could not reasonably have been expected the defendant is not liable. Foreseeableness or reasonable anticipation of the consequences of an act is determinative of defendant’s negligence.” Dennis v. Oden’Hal-Monks Corp.,
Mrs. Buckner testified that she had been in the tearoom “quite a few times,” and was thoroughly familiar with it. She was “a little embarrassed,” she said, at the delay in being served and felt they had waited long enough. Her friend said they were
It thus appears that in order to end a delay which was distasteful to her, but not otherwise harmful, the plaintiff took charge of the table, ordinarily a safe applicance, moved it as far as she thought necessary, but either because she did not move it far enough or because shе did not exercise proper care in walking by it, she caught her foot on the table leg and fell. It is difficult to see how any reasonable care or foresight with respect to the type or arrangement of the tables could have prevented such a result, whether the plaintiff’s movements were occasioned by a telephone call immediately after she sat down or by a desire to be served more promptly.
The evidence does not show that the delay in serving was a wrongful act, either a breach of contract or a tort. At most it constituted an inconvenience, and the plaintiff’s attempt to get rid of it lacked the elements essential to cast liability on the defendant. “If an inconvenience is so great that it is reasonable to get rid of it by an act not obviously dangerous, and executed without carelessness, the person causing the inconvenience by his negligence will be liable for any injury that may result from an attempt so to avoid such inconvenience.” 1 Thompson, Commentaries on the Law of Negligence, §200, p. 196.
Even if it be assumed that the delay amounted to negligence, it still was not the sole proximate cause of the plaintiff’s injury.
To constitute actionable negligence there must be causal connection by natural and unbroken sequence between the negligence complained of and the injury suffered. Wallace v. Jones,
While the question of proximate cause is ordinarily for the jury, yet if it he here assumed that the defendant was negligent in any manner, which has not been proved, the evidence, аs was said of the evidence in Wallace v. Jones, supra, so clearly shows that such negligence was not the proximate cause of the plaintiff’s injury that we so hold as a matter of law.
The case of Walgreen-Texas Co. v. Shivers,
Since we hold that the plaintiff is not entitled to recover, it is not necessary to notice defendant’s assignments on instructions.
The judgment below is reversed and final judgment entered for the defendant.
Reversed and final judgment.