Batson v. Western Union Telegraph Co.
Decision Date | 16 January 1935 |
Docket Number | No. 7440.,7440. |
Parties | BATSON v. WESTERN UNION TELEGRAPH CO. |
Court | U.S. Court of Appeals — Fifth Circuit |
Frank O. Spain, of Hollywood, Fla., and L. O. Casey, of Miami, Fla., for appellant.
J. Julien Southerland, of Miami, Fla., for appellee.
Before SIBLEY, HUTCHESON, and WALKER, Circuit Judges.
Appellant, entering appellee's premises to send a telegram, slipped and fell. Her suit for the injuries she sustained went against her. The District Judge, when her evidence closed, of the opinion that her own testimony (she was the only witness offered to show what happened) showed she had no case, instructed a verdict for defendant. She urges upon us that in doing so he fell into the error of drawing his own fact inferences from what she said, instead of letting the jury draw them.
Appellee insists that appellant's testimony, clear, definite, simple, and brief, admits of only one inference, and that against her case. As it is determinative of her appeal, we set it out:
Appellant insists that her case falls within the rule announced in Judson v. American Ry. Express Co., 242 Mass. 269, 136 N. E. 103, Trottier v. Neisner Bros., 284 Mass. 336, 187 N. E. 619, and hosts of like cases,1 that the proprietors of business places are under a duty to customers resorting there during business hours and for business purposes to exercise due care to make and keep the premises reasonably safe for their use.
Appellee admits the general rule to be as stated. It denies its application here. It points to the absence in those cases, the presence here, of knowledge on the customer's part of the condition which it is claimed made the place unsafe; to the presence there, the absence here, of evidence that the treatment the floor had just been and was being given when plaintiff came in was in itself or in the way it was applied, unusual or dangerous. It points, too, and this it says is fatal to plaintiff's case, to the fact that plaintiff knew exactly what had been done to the floor and fully appreciated the nature and source of the dangers resulting. It argues that this is not a case, as some of those relied on by plaintiff were, of floors made unsafe by the presence on them of obstacles, or substances which should not have been there, Ex parte Sanders, 47 Cal. App. 368, 190 P. 647, a piece of meat, Great Atlantic & Pacific Tea Co. v. Chapman (C. C. A.) 72 F.(2d) 112, and Great Atlantic & Pacific Tea Co. v. McLravy (C. C. A.) 71 F.(2d) 396, ice in a vestibule. Nor is it a case as McNeil v. Brown (C. C. A.) 22 F.(2d) 675, and the others cited in the note were, of an unsafe condition brought about by washing or oiling floors, a condition known to defendant, but not known to plaintiff. This it says was, on the evidence plaintiff herself offered, a case of an ordinary and proper washing and oiling of the floors which, if it produced a condition of danger, produced one of which plaintiff fully knew, and the risks of which she voluntarily assumed. It insists that this case, as far as cases, where the question is whether the facts make a jury issue, can be ruled by others, is ruled, not by those appellant cites, but by such cases as Bridgford v. Stewart Dry Goods Co., 191 Ky. 557, 231 S. W. 22; Hendricks v. Maison Blanche, 5 La. App. 410; Carey v. Sellers, 41 La. Ann. 500, 6 So. 813; Vogt v. Wurmb et al., 318 Mo. 471, 300 S. W. 278;2 Reid v. Mimico, 1 D. L. R. 235 (Ontario).
We think appellee is right. Here there was no foreign substance wrongfully on the floor, lying unobserved there to make a secret hazard known to the proprietor, unknown to the customer, as there was in the case where meat had been dropped and left to lie, or where ice had been allowed to accumulate in an entrance way to form a slippery surface. Neither is this a case of a slippery condition caused by washing and oiling floors in a manner and under circumstances causing danger of which the proprietor knew and the customer did not. This is a case where the customer, having full knowledge of the condition obtaining, and of the risks attending walking on a floor recently washed and oiled, took a chance of slipping, contenting herself, as she made the attempt, with, in her own words, the precaution she took to exercise due care on account of the condition. Her testimony brings her case directly within those cases holding that no case of negligence is made out, for "the true ground of liability in a case of this kind is the proprietor's superior knowledge of the perilous instrumentality, and the danger therefrom to persons going on the property." 20 R. C. L. 56 par. 52. Id., quoted with approval in Vogt v. Wurmb, supra.
The Maison Blanche Case, supra, stated the principle this way: That to maintain an action by a customer against the owner of a store for apparent defects at least two elements must exist, fault on the part of the owner and ignorance of the danger on the part of the customer. The Bridgford Case, supra, which was a suit for injuries sustained by one going with knowledge of its condition on a wet basement floor, puts it this way:
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