Bartels v. Cair-Dem, Inc.

• Decision Date: 12 November 1963
• Docket Number: CAIR-DE,INCORPORATE,A,No. 51083,51083
• Citation: 124 N.W.2d 514,255 Iowa 834
• Parties: Marie BARTELS, Appellant, v.ppellee.
• Court: Iowa Supreme Court

Page 514

124 N.W.2d 514

255 Iowa 834

Marie BARTELS, Appellant, v. CAIR-DEM, INCORPORATED, Appellee.

No. 51083.

Supreme Court of Iowa.

Nov. 12, 1963.

Raymond E. Pogge, Council Bluffs, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee.

GARFIELD, Chief Justice.

Plaintiff, an invitee in defendant's supermarket in Council Bluffs, was injured in a fall over a wooden drawer, about 10 inches high and 2 feet long, on the floor of an aisle in the rear of a display counter. She brought this law action to recover for alleged negligence in causing her injuries. At the close of plaintiff's evidence the trial court sustained defendant's motion for directed verdict on the grounds of insufficient evidence of defendant's alleged negligence; plaintiff was contributorily negligent as a matter of law; any negligence of defendant was not the proximate cause of her injuries and it would be the court's duty to set aside any verdict for plaintiff. From judgment accordingly plaintiff has appealed. We cannot approve the ruling.

I. We observe at the outset that these propositions, applicable here, are deemed so well established that authorities need not be cited in support of any of them:

1) In considering the propriety of the directed verdict we give plaintiff's evidence the most favorable construction it will reasonably bear;

2) Plaintiff has the burden to prove by a preponderance of the evidence defendant's negligence and her freedom from contributory negligence;

3) Generally questions of negligence, contributory negligence, and proximate cause are for the jury--it is only in exceptional cases they may be decided as matters of law;

4) An issue may be proven by circumstantial evidence, but this evidence must be such as to make the theory of causation reasonably probable, not merely possible, and more probable than any other theory based on such exidence. Generally, however, it will be for the jury to say whether circumstantial evidence meets this test;

5) Even when the facts are not in dispute or contradicted, if reasonable minds might draw different inferences from them a jury question is engendered. See rule 344(f) 2, 8, 10, 16, and 17, 58 I.C.A.

II. A familiar statement in cases of this kind is that the facts of each particular case are controlling on the question of negligence. Corrigan v. Younker Brothers, 252 Iowa 1169, 1173, 110 N.W.2d 246, 248, and citations; Corkery v. Greenberg, 253 Iowa 846, 850, 114 N.W.2d 327, 329. We therefore summarize the evidence--in the light most favorable to plaintiff.

Plaintiff was 58 at the time she fell. She had ordered a cake by telephone from defendant's store. 'They' were to bake it--a sheet cake with 48 pieces--for a party. She was to get the cake at defendant's 'courtesy counter' just before going to the party. About 7 o'clock on the Friday evening of the party she went to the store and asked for her cake at the courtesy counter. The clerk told plaintiff the cake was not there, it must still be in the store's bakery and directed her to go with him to the bakery.

Entrance to the store, a Super Valu store, was on the north. The courtesy counter was on the west side in the front of the room. The bakery was in the northeast corner. Between the courtesy counter and the bakery was a row of five checkout stands. Immediately to the rear (south) of these stands was an east-west aisle wide enough for a customer to move the cart containing the merchandise of his choice. Just south of this narrow aisle was a counter with a display of merchandise on it extending from near the east wall to a point a little west of the center of the row of checkout stands. South of this merchandise display was another east-west aisle. It was about 10 feet wide. It was through this aisle that plaintiff followed the clerk from the courtesy counter to the door to the bakery room and returned with her cake to the west end of the display counter.

The wooden drawer over which plaintiff fell was near the middle of this 10-foot aisle, just to the rear of the counter with a display of merchandise on it. After plaintiff fell 'they' pushed the drawer out of the way--close to the merchandise display. Plaintiff did not take the narrower aisle just to the rear of the checkout stands because it was filled with customers about to check out and that space was blocked. Then there was a wider open space at the west end of the display counter than at the east end and the east end was also blocked. She looked for a checkout stand where the fewest customers were waiting to be checked and saw only two customers were at the second or third stand from the west. It was about in front of the west end of the merchandise display. She intended to check out there.

At the time plaintiff fell she was carrying her cake in the same manner the clerk carried it out of the bakery and placed it in both her arms near the bakery door. It was in an open cardboard box about 10 inches wide and 18 inches long or a little longer. Plaintiff held the box in front of her about waist high. She also was carrying her purse on one arm. Neither the clerk who got the cake from the bakery nor any other employee offered to carry it for plaintiff to a checkout stand or, for that matter, to the automobile in which she came to the store, parked in the store's parking lot near the entrance.

The drawer over which plaintiff fell was not in the aisle when plaintiff followed the clerk from the courtesy counter to the bakery. While the clerk was in the bakery a few minutes getting the cake she was facing east--away from the aisle. Plaintiff had usually patronized this store. She had never seen such an obstruction in an aisle. No one warned her of its presence. The drawer contained a device for stamping the price on cans and packages of merchandise, numbers to place in the end of 'the stamper,' labels, and rags with which to wipe off the merchandise. Prior to the evening she fell she had seen clerks in this store stamping the merchandise with this type of stamper.

There is much evidence that just before plaintiff fell her attention was distracted by the display of merchandise on the counter near the checkout stand she intended to use. The counter was about the same level as the cake plaintiff was carrying--waist high. She looked at the merchandise on display and the prices on it, decided she was not interested in buying any of it, saw there would soon be an opening at the checkout stand, started toward it, took two steps and fell over the drawer. It is not entirely clear whether she was looking at the display or the checkout stand at the moment she fell. There is substantial evidence she was looking at the display. Plaintiff did not see the drawer before she fell.

III. We may thus paraphrase the grounds of defendant's negligence alleged in plaintiff's petition: 1) In carelessly placing an obstacle in the aisle used by customers; 2) in failing to keep its premises in reasonably safe condition; 3) in failing to exercise reasonable care that plaintiff would not be exposed to danger from conditions in the store; and 4) in failing to warn plaintiff about said obstacle and danger.

No new or difficult rule of law is involved on this appeal. It is not disputed that plaintiff was a customer in defendant's store and therefore occupied the status of an invitee. Of course it was not an insurer of her safety. It is equally clear defendant was under the duty to use ordinary care to keep in a reasonably safe condition those portions of its premises invitees are expected to use. Annotation 61 A.L.R.2d 110, 118, entitled 'Liability of proprietor of store * * * for injury from fall due to presence of obstacle placed or dropped on floor.' The aisle in which plaintiff fell was such a place. As stated, it was the same aisle she used in following the clerk from the courtesy counter to the bakery. And there is evidence that when plaintiff returned from the bakery with her cake the clerk went ahead of her.

The first ground of defendant's motion for directed verdict is claimed insufficient evidence of its negligence. The point first urged in support of this ground in the trial court, and argued here, (I-A) is that no notice to defendant is shown of any obstruction on its premises because there is no showing how long the drawer had been in the aisle or who placed it there.

A familiar and important principle in cases of this kind is that liability of a store owner or occupant for negligence in failing to keep his premises safe, or to warn invitees of existing danger, is predicated on the owner's or occupant's superior knowledge concerning the danger. Atherton v. Hoenig's Grocery, 249 Iowa 50, 54, 86 N.W.2d 252, 254, and citations; Vollmar v. J. C. Penney Co., 251 Iowa 1026, 1028, 103 N.W.2d 715, 716; Kramer v. F. W. Woolworth Co., Iowa, 123 N.W.2d 572, 574; Anno., supra, 61 A.L.R.2d 110, 124.

On this question of knowledge there are two rules of fundamental significance. If the storekeeper or his servant places the obstacle on the floor, proof of knowledge is unnecessary; the storekeeper will be presumed to have notice. Kramer v. F. W. Woolworth Co., supra; J. C. Penney Co. v. Kellermeyer, 107 Ind.App. 253, 19 N.E.2d 882, 884, 22 N.E.2d 899; White v. Herpolsheimer Co., 327 Mich. 462, 42 N.W.2d 240, 243, 26 A.L.R.2d 667; Brown v. Slack, 159 Neb. 142, 65 N.W.2d 382, 385; 5 N.C.C.A.3d 437, and citation. Schafer v. Hotel Martin Co., 249 Iowa 866, 871, 89 N.W.2d 373, 376, and Vollmar v. J. C. Penney Co., supra, at page 1031 of 251 Iowa, page 718 of 103 N.W.2d, recognize this rule as applied to claimed dangerous condition of the premises.

The second rule is that where presence of the obstacle is traceable to persons for whom the proprietor is not responsible, proof of his negligence requires a showing he had actual notice thereof or that the condition existed for such a length of time that in the exercise of reasonable care he should have known of it....