Barnes v. J.C. Penney Co.

• Decision Date: 15 July 1937
• Docket Number: 26316.
• Citation: Barnes v. J.C. Penney Co., 190 Wash. 633, 70 P.2d 311 (Wash. 1937)
• Parties: BARNES v. J. C. PENNEY CO.
• Court: Washington Supreme Court

70 P.2d 311

190 Wash. 633

BARNES v. J. C. PENNEY CO.

No. 26316.

Supreme Court of Washington, En Banc.

July 15, 1937

Appeal from Superior Court, Chelan County; W. O. Parr, Judge.

Action by Mabel Barnes against the J. C. Penney Company. From an order granting the plaintiff's motion for a new trial after the defendant's motion for a judgment of nonsuit made at the close of the plaintiff's case had been granted, the defendant appeals.

Order appealed from reversed with instructions.

Palmer Askren & Brethorst and B. E. Lutterman, all of Seattle, and Hughes & Hughes, of Wenatchee, for appellant.

C. B Conner, of Wenatchee, for respondent.

BEALS Justice.

Defendant corporation owns and operates a department store in the city of Wenatchee. In her complaint, plaintiff alleged that during the month of August, 1935, she visited defendant's store and after completing a purchase was walking down an aisle thereof; that as she turned into an intersecting aisle a small child, riding a tricycle belonging to the store, collided with plaintiff, throwing her violently to the floor; that as a result of injuries so received, plaintiff suffered much pain, and was rendered lame and incapable of following her occupation for a considerable period of time. Plaintiff demanded judgment for over $2,600, as compensation for her injuries. The issues being regularly made up, the action was called for trial Before a jury, and at the close of plaintiff's case the defendant moved for a judgment of nonsuit, upon the ground that plaintiff's evidence disclosed no cause of action against the defendant. The court granted the motion, but later reconsidered its ruling and granted plaintiff's motion for a new trial, and from this latter order defendant has appealed.

Respondent's motion for a new trial was based upon the following grounds:

'1. That the order dismissing said action was and is contrary to the law and not supported by the evidence.

'2. That the order dismissing said action is contrary to the law and the evidence.'

The order granting the new trial simply recites that it appeared to the court 'that plaintiff's motion for a new trial should be sustained,' and accordingly granted the same.

In ruling upon a motion for a nonsuit introduced at the close of a plaintiff's case, there is no place for the exercise of judicial discretion, the one question to be considered being whether as matter of law the plaintiff has made a case which should be submitted to the trier of the facts. Under these circumstances, an appeal from an order granting a new trial brings Before the appellate court only the question of law, whether or not the trial court was correct in its ruling upon the motion for a nonsuit.

In the case of Grant v. Huschke, 70 Wash. 174, 126 P. 416, 417, an order granting plaintiff's motion for new trial, made after the rendition of a verdict in favor of the defendant, was reversed. In the course of the opinion, this court said: 'The respondent argues that the granting of a new trial is a matter of sound discretion, and that where that discretion has not been abused the judgment will not be disturbed. The rule stated is correct when the discretion of the court is exercised upon the facts, but it is not correct where it is exercised upon questions of law. In such cases the ruling of the court will be treated the same as a ruling upon any other legal question arising in the progress of the trial, and this court will determine its correctness independently of the judgment of the trial court. [Citing cases.]'

Respondent relies upon the rule laid down in State v. Cornell, 152 Wash. 120, 277 P. 458, in which the state appealed from an order granting defendant's motion for a new trial made after his trial and conviction on a criminal charge. In the case cited, in granting the motion for new trial the trial court exercised its discretion, the record showing that the jury had passed upon disputed questions of fact. The situation was different from that here presented, and the case cited and other authorities laying down the same rule are not here in point.

During the trial it was stipulated that the tricycle on which the child was riding at the time of its collision with respondent was the property of appellant, and was on exhibition for sale in its store. It is also admitted in the record that appellant owns and operates a general merchandise store in the city of Wenatchee, and that in connection with this business it employs numerous agents and clerks. It appears beyond question that respondent, while walking along an aisle in appellant's store, was struck by the tricycle, and that as a result of the collision she suffered severe injuries. No question of contributory negligence is presented by the evidence, the only question to be considered being that of whether or not respondent's evidence shows liability on the part of appellant.

Respondent relies upon the well-recognized rule that a nonsuit may be granted only when the plaintiff's evidence, together with all the inferences which a jury can justifiably draw therefrom, is insufficient to support a verdict in favor of the plaintiff, and that in a jury case the court cannot, in ruling upon a motion for nonsuit, weigh the evidence, but must consider it at its face value, together with all reasonable inferences which the jury might draw therefrom.

On the facts, respondent relies upon the doctrine stated by this court in the case of Riley v. Pacific Outfitting Co., 185 Wash. 497, 55 P.2d 1058, 1059, as follows: 'The law requires a storekeeper to maintain his storeroom * * * in such a condition as a reasonably careful and prudent storekeeper would deem sufficient to protect customers from danger while exercising ordinary care for their own safety. He is not an insurer of the safety of the customers that enter the store.'

In the case of Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 146 A. 282, 283, the Court of Appeals of Maryland, in discussing this question, used the following language: 'It is well settled that one who enters a store for the purpose of purchasing articles offered for sale there, or even for the purpose of inspecting them, is an invitee, and that the proprietor owes to such person the duty of exercising ordinary care to see that the place where such articles are displayed and the approaches thereto are in such a condition as not to imperil him so long as he himself exercises ordinary care.'

This rule applies both to the construction of the premises and to their maintenance.

The question here to be determined is whether or not the evidence introduced by respondent would support a finding that appellant violated its legal obligation, to respondent's damage. Respondent contends that the 'unreasoning impulse' rule, referred to by the United States Circuit Court of Appeals in the case of Wellington v. Pelletier, 173 F. 908, 26 L.R.A.(N.S.) 719, applies, and that the tricycle, constituting to a child an attractive object and a temptation to put the same into operation, should not have been so placed that a child could take possession thereof and propel the same along the aisles of the store. In the case of Wellington v. Pelletier, supra, it appeared that the appellant negligently left several freight cars on a spur track, after setting the brakes; that thereafter children climbed on the cars and released the brakes, causing the cars to move, to the injury of another, a very different state of facts from those in the case at bar. While this court has several times followed the 'turn table' or 'attractive nuisance' doctrine, we are convinced that the case at bar does not fall within that principle. The situation here presented is so utterly different as to fall clearly without that doctrine. Respondent was required to show that the injury which she suffered was the natural or probable consequence of some negligent act or omission on the part of appellant. As above stated, appellant was required to maintain its place of business in a reasonably safe condition for the protection of its customers. The law imposes this obligation upon appellant, and it is not argued to the contrary.

A tricycle is not an appliance inherently dangerous in itself, either to a child operating the same, or to others. The record is silent as to the place the tricycle stood while exposed for sale in the store. Neither is there any evidence as to how the child who was riding the some obtained possession thereof, or how long the tricycle had been in operation. It does not appear that appellant had ever permitted tricycles to be ridden along its aisles. Respondent argues that under the evidence the jury would have been justified in assuming that some agent of appellant had turned the tricycle over to the child, but we do not think that from the evidence the jury would have been entitled to draw any such inference. It does not appear that any officer or agent of appellant had any notice whatsoever that a child was operating a tricycle along the aisles of its store. The mere fact that the accident occurred is not sufficient to warrant a finding in respondent's favor. Engdal v. Owl Drug Co., 183 Wash. 100, 48 P.2d 232. The facts do not fall within the res ipsa loquitur rule, for the reason, among others, that the specific cause of the accident, to wit, a child riding a tricycle, was definitely proven. To establish appellant's liability, respondent assumed the burden of showing some negligence on appellant's part.

A sorekeeper is not liable to his customer for injuries sustained by the latter when such injuries are caused by the independent act of a third party. In 45 C.J. 910, the rule is laid down as follows: 'Passive negligence may constitute proximate cause if it is the direct cause of the...