Sears, Roebuck & Co. v. Peterson

• Decision Date: 02 April 1935
• Docket Number: No. 10004.,10004.
• Citation: 76 F.2d 243
• Parties: SEARS, ROEBUCK & CO. v. PETERSON.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F.2d 243 (1935)

SEARS, ROEBUCK & CO. v. PETERSON.

No. 10004.

Circuit Court of Appeals, Eighth Circuit.

February 18, 1935.

Rehearing Denied April 2, 1935.

Frank Janes, of Minneapolis, Minn. (George Hoke and Cobb, Hoke, Benson, Krause & Faegre, all of Minneapolis, Minn., on the brief), for appellant.

William H. De Parcq, of Minneapolis, Minn. (Robert J. McDonald, of Minneapolis, Minn., on the brief), for appellee.

Before STONE, GARDNER, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

In this case appellee brought action against the appellant to recover damages for personal injuries caused by her falling on the floor of its store made dangerous by the alleged negligence of appellant. She recovered a verdict, and, from the judgment entered thereon, appellant appeals. The parties will be referred to as they appeared below.

The substantial question involved is whether the lower court erred in denying defendant's motion for an instructed verdict, and in support of this contention it is urged that: (1) There was ample inspection of the floor; (2) the twine over which appellee stumbled could not have been upon the floor for such a length of time that, in the exercise of reasonable care, the defendant should have discovered its presence; (3) defendant had no knowledge of the presence of the twine on the floor, and there was no proof that it placed the twine upon the floor.

The evidence tended to show that plaintiff, a woman of seventy years of age, about noon on the 10th of May, 1933, went to the seed department of the store operated by defendant in the city of Minneapolis, for the purpose of purchasing some garden seeds. The seed and shrubbery department was in a tent, running along the westerly wall of defendant's permanent store building. The tent was about fifty feet long by twelve feet in width, and had a dirt floor. There were two counters inside the tent, with an aisle between them. The counters were about three and a half feet high, and on them were displayed seeds and nursery stock. On hot days the evergreen trees, forming a part of defendant's stock, were placed inside the tent along one side of the aisle, to keep them out of the sun, and on the day in question some of these evergreen trees were inside the tent. Plaintiff purchased two rose bushes at the north end of the tent, and then, desiring to purchase some seeds which the clerk was unable to find in the seed cabinet at that end of the tent, she followed the clerk, at his invitation, down the aisle toward the south end. Near the seed cabinet at that end of the tent were some small evergreen trees, thirty to thirty-six inches high, wrapped with burlap and binding twine. After getting the desired seeds, the clerk started back toward the cash register, which was on the easterly counter, and plaintiff, walking in the aisle, started to follow. She took one step with her left foot when it became entangled in some rope or twine and caused her to fall, resulting in the injuries complained of.

On investigation, there was found to be a piece of rope or twine, about four feet long, with a loop at the end of it, which was around her left foot. She did not see this rope before she fell, but it had been lying on the ground in the aisle. The lower part of the aisle towards the floor was dark because the stands or counters obstructed the light. The rope, as it is called in the testimony by some of the witnesses, was a piece of rather stiff binder twine, used to wrap the evergreens. In describing the manner of wrapping the evergreens, Mr. Seibert, the clerk who waited on plaintiff, testified:

"The evergreens, you started the wrapping on the bottom of the tree, and as you go up you fold your branches in, and you wrap the string around, and when you get to the top you wrap it, and it is tied with a slip-knot on the top of the tree. * * *

"In making sales of these trees some were unwrapped and some were left wrapped up. If we could not please the customers with the ones we had unwrapped we would unwrap more. Three men were employed at this stand but at the time of the accident there were only two there, the third man having gone to lunch."

Detailing the manner in which the accident occurred, this witness further testified:

"I first saw Mrs. Peterson when she came along in front of the stand and looked at the rose bushes. I went out to wait on her and sold her two rose bushes, which I placed on the wrapping table near the register inside the tent or stand, as shown in defendant's Exhibit 2. She followed me in and said she wanted some seed, which I could not find in the seed cabinet at the north end. I then asked her to follow me to a cabinet at the other end where we might find the seed she wanted. This other seed cabinet was about twelve or fifteen feet south of the cash register. * * * After getting the seeds and learning that that was all Mrs. Peterson wanted to buy, I started back toward the register and she started to follow me. The next thing I saw, she was lying flat on the ground. She was lying against two small evergreens on the left side of the aisle on her right shoulder. There was a piece of twine on her left foot.

"Q. What part of the twine was on her foot? A. The loop which goes on the top of the tree.

"This loop was around her left foot. The entire piece of twine was about four feet long. This was about the total length of twine necessary to wrap around trees such as were there that day. This twine or loop was not connected to any one of those trees at the time we picked her up. There were several trees there at the time that did not have the rope or string on them because they had all been taken off to show the customers. All evergreens are wrapped with this kind of twine and all of them have a loop at the top. At the time of the accident this twine was not connected to anything at the other end. I did not see this twine before we took it off her foot. It was out in the aisle where people would walk when we took it off her left foot. I haven't any idea how the twine got there. Nobody, other than employees, ever unwrapped the trees."

Plaintiff, among other things, testified as follows: "When I turned around and started to walk my left foot was tangled up in a rope. When I went to move forward I fell flat right in the aisle on my right shoulder and heard the bones crack. The clerk who waited on me was the first one to come to me. I think I had taken one step and fell as I was about to take the next step with my left foot. When the clerk came to me he took the rope off my left foot. He said to the other clerk, `She fell on the rope.' I had not seen the rope before I fell. I was right near to the clerk as I walked down the aisle. This rope was on the ground in the aisle."

In the circumstances here disclosed, plaintiff entered the store of defendant as an invitee. As such, the defendant owed her the duty of exercising reasonable or ordinary care for her safety. It was not an insurer of the safety of plaintiff while on its premises, but was liable only for injury resulting from a breach of its duty to exercise reasonable or ordinary care. This duty is an active, continuous one. It owed her the duty of protection against injury through negligent acts of its employees. The court in effect so instructed the jury, and neither party has taken any exceptions to the instructions as given.

The difficulty in the case does not arise from the applicable principles of law, but in the application of those principles to the proven facts. The evidence before the jury was in part circumstantial, but it was no less probative on that account, and circumstantial evidence is as competent in this character of action as in any other.

The following circumstances may be noted as bearing upon the question of negligence: (1) The twine in which plaintiff became entangled, and over which she fell, was the character of twine used by defendant in wrapping the evergreen trees; (2) it was the same length as that used in wrapping a tree; (3) it had at its end the same kind of loop or knot as that used; (4) it was lying near an unwrapped tree; (5) only employees of defendant unwrapped and removed the twine from these trees. From these circumstances, the jury was warranted in inferring that the twine over which plaintiff tripped and fell had been removed from one of the evergreen trees by one of defendant's clerks, and thrown or left in the aisle by him. These inferences all logically flow from the proven facts. While defendant employed in this department three clerks, none of them, except one who testified for plaintiff, was placed on the witness stand, and no explanation is offered for defendant's failure to call these witnesses. In this condition of the record, we must assume that, had they been called, they would not have contradicted any of the testimony produced by plaintiff with reference to the unwrapping of these trees by defendant's employees, and would not have testified, we may assume, that the twine was not removed from the evergreen tree by one of them, and thrown in the aisle, where it was found at the time of the accident. Lincoln Life Ins. Co. v. Erickson (C. C. A. 8) 42 F.(2d) 997; Backus v. Owe Sam Goon (C. C. A. 9) 235 F. 847.

But it is urged by defendant that there was no proof that defendant had knowledge of the presence of the twine upon the floor, or that it had been upon the floor for such a length of time as to charge it with constructive knowledge. This is not a case in which...