Anderson v. Sears, Roebuck & Co.
| Decision Date | 01 November 1946 |
| Docket Number | 34204. |
| Citation | 26 N.W.2d 355,223 Minn. 1 |
| Parties | ANDERSON v. SEARS, ROEBUCK & CO. |
| Court | Minnesota Supreme Court |
Rehearing Denied March 28, 1947.
Syllabus by the Court.
1. The irregular and undesirable practice of granting a dismissal on the merits in a jury trial is equivalent in effect to the granting of a motion for a directed verdict.
2. A shopkeeper is bound to exercise reasonable care to keep his store premises in a reasonably safe condition for his customers and others whom he invites, expressly or impliedly to enter on business with him.
3. A change in floor level in plain sight, standing by itself without the intrusion of other material factors, is no evidence of negligence.
4. When counters, merchandise trucks, and other essential merchandising equipment are placed in a store so as not to threaten danger to those visiting the store on business and are in full sight and within the observation of every one, the merchant is not liable for accidents which result to a customer or invitee from his own carelessness and inattention to the surroundings.
5. The practice of directing a verdict in a jury trial does not impair the constitutional right to a trial by jury.
6. In the absence of an exception directed to the alleged error an error of law on the trial will not be considered upon appeal unless the alleged error is clearly specified in the notice of motion for a new trial.
Appeal from District Court, Hennepin County; Winfield W. Bardwell Judge.
E. Luther Melin, of Minneapolis, for appellant.
Fred A. Ossanna, of Minneapolis (Carl K. Lifson, of Minneapolis, on the brief), for respondent.
In an action for damages for personal injuries, plaintiff appeals from a judgment entered pursuant to an order granting defendant's motion for a dismissal on the merits at the close of plaintiff's case when plaintiff had rested.
Shortly after 5 p.m. on September 9, 1944, plaintiff, a machinist of the approximate age of 75 years, entered defendant's automobile accessory department to purchase a car battery and carrying strap. After he had paid for his purchase, he was directed by defendant's salesman to call for the battery at a battery room located on the west side of an adjacent service room or garage located in the same building. On the same side as the entrance to the battery room and in front of it, a portion of the garage had been partially partitioned off as a display space for exhibiting tires, batteries, and similar articles. The floor space used for these display purposes was six inches higher than the level of the floor in other parts of the garage. It was partially separated from the rest of the room by a six-inch riser in the concrete floor level and also by a display counter located flush with the edge of the floor riser and extending completely across the display space with the exception of a 23-inch passageway at one end. Directly above the counter and vertically on a line with the front side thereof and in line with the edge of the six-inch floor riser, a partition, extending from wall to wall, had been suspended from the ceiling down to within about three feet of the top of the counter. In passing to the door of the battery room, it was necessary to go through the 23-inch passageway at the end of the counter and to step from the lower to the higher floor level. The floor in the garage, inclusive of the elevated portion occupied for display purposes, was of concrete. The part of the riser under the counter was painted black. However, the portion at the end of the counter, in the 23-inch passageway, was not painted black, but, according to plaintiff, one could see on this portion a yellow and red spot here and there. According to plaintiff, the change in floor level had formerly been indicated in this passageway by having a yellow band painted across it at the edge of the stepdown on the higher floor level, but this had been worn and almost obliterated except for a four-inch remnant of the color band remaining on each side of the passageway. In other words, the upper level of the passageway floor at the edge of the riser was bare as to the middle 15 inches, but was flanked on each side by a four-inch patch of yellow color.
Upon his entry, plaintiff passed over the garage floor and through the 23-inch passageway. Athwart the passageway on the lower floor level, at a distance of two and one-half or three feet from the riser, stood a low-slung four-wheeled platform truck used for transporting merchandise from one part of the building to another. Plaintiff walked around the end of this truck and between it and the counter and without difficulty passed over the six-inch riser in the passageway to the upper floor level and thence to the battery room. On his return he carried a battery weighing 41 pounds in one hand. As he again approached the passageway, he turned sideways in order to provide clearance for the battery he was carrying. Plaintiff contends that he had not at any time noticed the change in floor levels, and that as he stepped through the passageway over the edge of the riser to the floor level six inches below he was violently jerked and thrown off balance. As a result, he pitched forward, but saved himself from falling only by grabbing the crossbar and uprights attached to one end of the merchandise truck, which was still standing in the same position on the lower floor level. In pitching forward, however, he wrenched himself severely and sustained certain injuries, for which he claims damages in this suit. In front of plaintiff, as he approached the passageway just before he fell, were the following: The showcase, whose opaque doors in the back concealed the contents except for what could be seen through a small crack where one of the doors was slightly ajar; the suspended ceiling overhead; the hand truck immediately athwart the passageway; a trash truck or box on wheels to the right; and an automobile standing about 20 feet beyond on the garage service floor. Light came into the room from the outside through windows and also through large drive-in doors, equipped over the greater part of their area with numerous panes of glass. In addition to the natural light, there was illumination from a large number of overhead electric lights equipped with reflectors. Plaintiff testified that 'it was a pretty bright day,' and admits that the room was well lighted. He contends, however, that various objects such as the display counter cast shadows where he was walking.
1. The order of the trial court granting a dismissal on the merits removed the case from further consideration by the jury and was equivalent in effect to a...
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