Sears, Roebuck & Co. v. Johnson

• Decision Date: 02 July 1937
• Docket Number: No. 1513.,1513.
• Parties: SEARS, ROEBUCK & CO. v. JOHNSON.
• Court: U.S. Court of Appeals — Tenth Circuit

91 F.2d 332 (1937)

SEARS, ROEBUCK & CO. v. JOHNSON.

No. 1513.

Circuit Court of Appeals, Tenth Circuit.

July 2, 1937.

C. H. Hayes, of Oklahoma City, Okl. (Ames, Cochran, Monnet & Ames, of Oklahoma City, Okl., on the brief), for appellant.

W. J. Waite, of Oklahoma City, Okl., for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

This action commenced by the plaintiff, (appellee here) in the district court of Oklahoma county, in due time was removed by defendant (appellant) to the United States District Court for the Western District of Oklahoma.

W. R. Williams, an employee of the defendant, Sears, Roebuck & Co., was originally joined as a defendant but dismissal was entered as to him in the United States District Court on September 18, 1935.

The parties will be referred to in the order as same appeared in the trial court. In plaintiff's petition, it is alleged, among other things, that it was the special duty of defendants to see that the floors of the store were kept in a reasonably safe condition for all persons who came upon its premises to transact business with defendants, and that it was the further duty of the defendant, W. R. Williams, to see that the lights in or about the premises were kept in good condition, and lighted, so that one coming upon the premises might see the dangers, if any there might be, and that the defendants and each of them carelessly and negligently allowed and permitted the floors at the head of the stairway leading to the basement to become wet and slippery, and permitted and allowed the lights over and above said stairway to become out of order, or entirely out, and that said slippery and unlighted condition was allowed and permitted from early in the morning of September the first until after this plaintiff was injured, a period of more than four hours, and that by reason of the carelessness and negligence on the part of these defendants in permitting and allowing said floor to become wet and slippery and said light to be out of order, or unlighted, caused a dangerous condition, which was either known to these defendants or should have been known to them had they exercised ordinary care for the safety of others, and which condition was hazardous to this plaintiff and to all others who might enter said establishment; that it was the duty of these defendants and each of them to see that the floor in and about the premises were in a safe condition and that lights in said place of business were lighted and sufficient so that a person coming in off the street might see any obstruction or danger, but that these defendants and each of them failed and refused to perform that duty; that on or about the 1st day of September, 1934, this plaintiff went to the store of the defendant to make a purchase, which article she intended to purchase was located in the basement of said store, and that as this plaintiff approached the stairway leading to the basement she stepped upon the wet and slippery floor, slipping and falling to the bottom of said stairway, a distance of approximately 15 feet, and that this plaintiff was unable to see and ascertain the wet and slippery condition of the floor at this place by reason of the lights being out over and above the said stairway, and because of insufficient light at this place, in falling, this plaintiff fell upon her left leg striking the iron part of the first or top step of said stairway, bouncing the remainder of the way into and upon the floor of said basement.

Defendant entered a general denial with a plea of contributory negligence on the part of the plaintiff.

Plaintiff in her behalf testified that on the morning of September 1, 1934, accompanied by her husband, she left their home around 9:30 or 10 o'clock in an automobile, going directly to the store of the defendant, whilst it was raining, alighting from said car and waiting at the entrance for her husband to return after parking, then both of them entered the vestibule of the east entrance, going to the basement by means of the stairway immediately to the right of said entrance, and after 20 or 25 minutes, left by the said east entrance, visiting another store, and returning to said store about 11 o'clock, not then having a parking place, she proceeded, without her husband, down the same stairway, to the basement, made her purchase, and proceeded up the stairway to the said east entrance, and seeing her husband on the outside, started back to the basement to ascertain the whereabouts of a clerk who had offered to bring her parcel upstairs for her.

She further testified as follows:

"Q. Then what did you do? A. Started back down and as I started I slipped and fell.

"Q. At that time did you know what you slipped on? A. No, I didn't.

"Q. Did you see the wet on the floor? A. I never noticed it at that time.

"Q. When you fell where did you start to fall? A. From the top of the —

"Q. From the top of the stairs? A. Yes.

"Q. When you started back, do I understand, Mrs. Johnson, that you fell before you reached the stairway? A. When I started back down the stairway is when I fell.

"Q. Where had you got? Tell me as near as you can. A. Well, I just took two or three steps to the head of the stairs and my foot slipped and I went on down.

"Q. You hadn't then reached the stairway at the time you fell? A. Yes, sir, right at the head of the stairs.

"Q. Had taken hold of the rail which went down the side of the stairway? A. Yes, I had hold — my hand slipped off — no, I hadn't had hold of the railing.

"Q. Well, when was it then your hand slipped off? A. I just don't know.

"Q. You just don't know? A. Yes, I do, I will think a minute.

"Q. I am not trying to confuse you. Take all the time you want. A. I didn't have a hold of the railing. I never had hold of the railing.

"Q. How close to the stairs were you when your foot slipped? A. It seems like I had just reached the step and my foot slipped."

Plaintiff further testified she fell to the bottom of the stairs where some one picked her up, she being unable to rise, and then she was carried to the mezzanine floor, where she was when her husband arrived from the outside of the store where he had been with his car, he having been called in to where she was by some one, and that while she was there on the mezzanine floor, the manager of the store said to her husband, after his arrival, in her presence, that they mopped the floor frequently.

That as she was assisted out of the defendant's store, she observed that there were no mats on the floor at the doorway going into the store; that it was about an hour and a half or two hours after her fall before she left the store, and that she thought it was along about 11 o'clock or maybe after 11, close to the noon hour, but before noon, when she fell down the stairway.

Bob Bieghtol testified that he was in the transfer business, and was in defendant's store a little before noon, when it was raining steadily, that he had gone in the basement to get a tail-light for his truck which probably burned out, having refused to work, and when he went down into the basement, he noticed that it was slick. He said, "I kind of slipped myself," and that it was a "little bit dark in there," and that he observed the floor of the store was "wet."

He testified in detail as follows:

"Q. You say you slipped yourself? A. Yes.

"Q. And whereabouts was that? A. Right at the top stair.

"Q. That was at the head of the stairway? A. Yes, sir.

"Q. After you had gone into Sears, Roebuck & Company's Store, did you see any one down in the basement there that you knew? A. I saw Mr. Johnson in the little vestibule and we stood and talked quite a while. It was raining straight down and I looked at my watch as I was figuring on going home to dinner, and I said if it didn't quit I would have to go anyway, and it was 11:30, but it didn't quit.

"Q. At the time you slipped, was that before or after you saw Mr. Johnson? A. Before.

"Q. How long before? A. Not over a minute or two. I had just come up and met Mr. Johnson."

On cross-examination the witness testified that he did not see Mrs. Johnson (the plaintiff) while in the store; that he did not know until several days later that anything out of the ordinary had happened on the 1st of September, and further in detail as follows:

"Q. When you say it was dark and gloomy in there, do you base that statement on the fact that it was raining and when it is raining it is rather cloudy? A. Yes.

"Q. You don't, as you have indicated, have any direct independent recollection based on anything you observed at that particular time? A. No. It is generally that way.

"Q. And that is the reason you say it was then? A. Yes.

"Q. The time you slipped, when did that happen? A. Just probably five minutes. I went down —

"Q. Was it when you went down in the basement? A. Yes, sir.

"Q. You kind of slipped at the head of the stairway, is that right? A. Started to, I didn't fall, no sir.

"Q. I know that, just tell me what you did then? A. Started to step down and slipped on the first step.

"Q. You slipped on the first step? A. Yes, sir.

"Q. You didn't slip at the top of the stairs? A. No, sir.

"Q. That was after you had gotten on the stairway? A. Yes, sir. Had hold of the bannister.

"Q. You had yourself come in from the outside? A. Yes, sir.

"Q. It was raining, as you say, very hard at the time? A. Yes."

Tom Coe testified that he was in the store of Sears, Roebuck & Co.'s (defendant) store on September 1, 1934, somewhere between 11 and 12 in the morning; that his attention was called to the fact that some one had fallen on the stairway by a gathering crowd, and that he did not know who the party was at the time. When asked if after he learned that the party had fallen he noticed the floor, he replied as follows:

"A. Well, not in particular.

"Q. Can you tell the court the condition of the floors? A. I never paid enough attention to it to try it."

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