Baca v. Kahn.

• Decision Date: 01 August 1945
• Docket Number: No. 4891.,4891.
• Citation: 49 N.M. 225,161 P.2d 630
• Parties: DE BACA et al.v.KAHN.
• Court: New Mexico Supreme Court

49 N.M. 225

161 P.2d 630

DE BACA et al.

v.KAHN.

No. 4891.

Supreme Court of New Mexico.

Aug. 1, 1945.Rehearing Denied Sept. 17, 1945.

Appeal from District Court, Santa Fe County; William J. Barker, Judge.

Action by Cleofas C. de Baca and H. C. de Baca, her husband, against Gus Kahn, doing business as Kahn's Shoe Store, to recover for injuries sustained by plaintiff wife from a fall in defendant's store. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded with directions.

Customer's statement, that when she fell her stockings and coat were soiled by the oil she fell on, did not sustain allegation that store floor had been carelessly and negligently oiled by owner, so as to render him liable for customer's injuries.

[161 P.2d 630 , 49 N.M. 226]

Carl H. Gilbert and Reed Holloman, both of Santa Fe, for appellant.

H. A. Kiker and Manuel A. Sanchez, both of Santa Fe, for appellees.

LUJAN, Justice.

Plaintiffs, husband and wife, commenced this action against defendant for damages for injuries sustained by the plaintiff, Cleofas C. de Baca, from a fall in defendant's store alleged to have been caused by the careless and negligent maintenance of the floor. Defendant denied that he was negligent and pleaded the defense of contributory negligence.

The material allegations of negligence were: That the floor, as plaintiffs are informed and believe, had been oiled on the night previous to the accident and that the surface had been left wet, slick and slippery and in a dangerous condition to walk upon; that said injuries and her consequent physical condition are the direct and proximate result of carelessness and negligence of the defendant in allowing the floor to remain wet with oil, thereby rendering the same slick, slippery and dangerous to walk upon, and that the defendant knew, or by the exercise of reasonable care should have known, of the dangerous condition of the floor.

The answer admitted that the plaintiff, while in defendant's store on the occasion referred to in the complaint, fell to the floor. It contained a general denial and alleged the proximate cause of plaintiff's injury was her own negligence.

The plaintiff, Cleofas C. de Baca, was the only witness on behalf of the plaintiffs who testified regarding the occurrence at the time of the accident complained of, or as to the condition of the defendant's store. Her testimony was in substance: That she entered the defendant's store on February 20, 1943, to pay a bill; that as she walked across the floor she slipped and fell and that when she got up she noticed that her stocking was all torn up and full of oil, and that the part of her coat where she fell was likewise full of oil; that she inquired from Henry Ballin, who came to her assistance, if someone had oiled the floor, that he answered no, but that Mrs. Kahn had waxed the floor the night previous to the accident. On being later recalled, she testified there was oil on the floor but could not say whether it was fresh, that it was all black and ‘kind of’ fresh where she fell, because she got full of oil and that the oil had penetrated through her stocking and marked the skin of her leg. On cross-examination she testified it was just a big wet spot where she fell but was unable otherwise to describe it. The plaintiff's daughter, Mrs. Margaret Sena, testified that about 5:30 that evening she examined her mother's clothes, that the left stocking was badly torn and that there was oil on both the stocking and the coat. Doctors Nancy D. Campbell and Joseph Foster testified in behalf of Cleofas C. de Baca that she was suffering from a widening of the left sacroiliac joint and arthritis of the joint which could have been caused by the fall.

The defendant and five other witnesses who had been employed in his store at the time of the accident, all testified that the floor had not been oiled since the preceding December (1942), at least two and a half months prior to the accident; that when it was oiled a special non-viscous preparation made by the Texaco Company for that particular purpose was put on the floor in spots, and then it was spread evenly with mops; that after this was done, they went over the floor with dry mops and that the floor would be perfectly dry the next morning; that at the time Cleofas C. de Baca fell, the floor was perfectly dry. The defendant and two other witnesses testified that the floor was oiled periodically four times a year for the past ten years. Mr. Henry Ballin denied he had told Cleofas C. de Baca that Mrs. Kahn had waxed the floor the night previous to the accident. Mrs. Kahn testified she had never used wax on the floor. Mr. Ballin testified that, immediately after Mrs. Baca fell, he examined the spot where she fell and that it was perfectly dry. Five other witnesses testified that little children, when trying on new boots, would run around and sometimes try to slide and skate and would fall, that this was the first time any one ever fell on the floor. All witnesses testified that on the day of the accident from 200 to 250 customers had walked over the place where Mrs. Baca fell, and that said employees had walked over the same place approximately 80 times on that day, without any slipping.

The case was tried to the Court who, after hearing evidence, made findings of fact and conclusions of law, as follows:

‘No. 5. That while said plaintiff was in said store on said date and prior to paying said account, plaintiff slipped and fell on the floor of said store, and injured herself. That said floor had been oiled prior to the time that the plaintiff, Cleofas C. de Baca, fell as aforesaid, and the surface thereof had been left wet, slick and slippery and in a dangerous condition to walk upon, and was in that condition at the time of said fall; that the fall of said plaintiff was caused by her feet slipping on said floor while walking in defendant's store; that defendant knew, or by the exercise of reasonable care should have known, of the dangerous condition of said floor.

‘No. 6. That as the proximate result of her falling on said store floor as aforesaid, while she was in the store of the defendant, said Cleofas C. de Baca suffered a widening of the sacroiliac joint on the left, and since the date of said injury has suffered intense and excruciating pain in the lower part of her back and in her left leg, and has been unable to attend to all of her household duties and affairs; since the date of said injury, said plaintiff has suffered great mental anguish and will so continue to suffer permanently.’

‘No. 10. That for several years prior to the time that the plaintiff, Cleofas C. de Baca, fell in the defendant's store, the defendant had caused the floor of his store to be periodically oiled, from three to five times each year, with Texaco floor oil, and had not treated his said floor with any other oil, grease or wax at any time prior to the occasion that said Cleofus C. de Baca so fell.

‘No. 11. That the said Texaco floor oil is a preparation manufactured specially for the purpose of oiling floors, and is generally and commonly used for the treating of floors in stores, schools and public buildings.

‘No. 12. That the said Texaco floor oil is a nonviscous oil.

‘No. 13. That no one ever fell in the defendant's store, other than the plaintiff, Cleofas C. de Baca, and some children, who fell while playing therein.

‘No. 14. That a large number of people had walked on, across and around the floor in the defendant's store between the time that the same had last been oiled and preceding the fall of the said plaintiff, Cleofas C. de Baca, and time of her said fall.’

Conclusions

‘II. That the injuries received by said plaintiff, Cleofas C. de Baca, were caused proximately by the carelessness and negligence of the defendant.

‘III. That by reason of said injuries, plaintiffs have suffered damages at the hands of defendant in the sum of $3000.00, and that plaintiffs are entitled to judgment herein for the sum of $3000.00, and their costs in this action.

‘IV. That it was not negligence for the defendant to have the floor of his store oiled.’

From a judgment rendered in favor of plaintiffs, the defendant appealed.

Defendant assigns thirty errors which are grouped for argument under four points, or headings, as follows: (1) The evidence was insufficient to sustain a finding of actionable negligence on the part of the defendant; (2) the Court erred in admitting in evidence the conversation between Cleofas C. de Baca and the defendant's employees with respect to the oiling or waxing of the floor; (3) the Court erred in holding the defendant liable for the damage caused by the delay of the plaintiff, Cleofas C. de Baca in obtaining medical attention; and (4) the Court erred in holding the defendant liable for damages caused by subsequent falls of the plaintiff, Cleofas C. de Baca.

The defendant's first and primary assault upon the judgment is under his first point or heading which relates to his several assignments of error challenging sufficiency of the evidence to sustain the finding of actionable negligence embraced in the trial court's finding No. 5, hereinabove quoted.

We think this evidence falls short of establishing any actionable negligence on the defendant's part. In other words, plaintiff has failed to connect her admitted injury with any actionable negligence of the defendant.

First, there is no substantial support in the evidence for the trial court's finding that the spot on the store floor where plaintiff fell had been left in a wet, slick, slippery and dangerous condition from any recent oiling by the defendant. We accept it as an established fact, as the trial court found from the plaintiff's testimony, that there was an oily spot on the floor upon which she slipped and fell. Nevertheless, unless we are prepared to say the presence on the floor of an oily patch, standing alone, will support an inference that it resulted from a recent...