Benoit v. Marvin, No. 1841

• Docket Nº: No. 1841
• Citation: 120 Vt. 201, 138 A.2d 312
• Case Date: January 07, 1958
• Court: United States State Supreme Court of Vermont

Page 312

138 A.2d 312 120 Vt. 201 Madelaine BENOIT
v.
Hugh M. MARVIN, David J. Hoar and John J. Staab. No. 1841. Supreme Court of Vermont. Jan. 7, 1958.

Page 314

[120 Vt. 202] Joseph W. Foti, Montpelier (Charles J. Adams on the brief), for plaintiff.

Theriault & Joslin, Montpelier, for defendants.

Before [120 Vt. 201] CLEARY, ADAMS, HULBURD and HOLDEN, JJ., and SHANGRAW, Superior judge.

[120 Vt. 202] CLEARY, Justice.

This is a suit in tort for negligence. The defendants pleaded the general issue. Trial was by jury, resulting in a verdict and judgment for the plaintiff. The case is here on the defendants' exceptions to the denial of their motions for a directed verdict, to set aside the verdict, for judgment notwithstanding the verdict, and for failure to charge in accordance with their requests numbered 4 and 5.

The grounds of all of the motions are identical: 1. That the evidence, viewed in the light most favorable to the plaintiff, failed to show any actionable negligence on the part of the defendants or that they failed in the performance of any duty owed to the plaintiff; 2. the plaintiff assumed the risk; [120 Vt. 203] 3. the plaintiff was guilty of contributory negligence.

The plaintiff contends that the first ground of the motions is too general and not specific enough to serve as a basis for finding error on the part of the trial court. She admits in her brief that defendants' counsel further explained the motions by argument as shown by the transcript. It there appears that the court below must

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have had in mind the defendants' claims that there was no evidence that they had violated any duty owed to the plaintiff or had permitted any hazard or any condition to exist which was the sole proximate cause of the plaintiff's injury. In such circumstances the general ground of the motion avails the defendants to raise the question. Wentworth v. Town of Waterbury, 90 Vt. 60, 64, 96 A. 334. See also Merchant's Nat. Bank v. Carpenter, 105 Vt. 339, 343, 165 A. 909 and Granite Acceptance Corp. v. Fergnani, 116 Vt. 155, 158-159, 71 A.2d 422.

In passing upon motions such as these the evidence must be taken in the light most favorable to the plaintiff and the effect of modifying evidence is to be excluded. If there is any substantial evidence fairly and reasonably tending to support the plaintiff's claim the question was for the jury and the motions were properly denied. Enosburg Grain Co. v. Wilder and Clark, 112 Vt. 11, 15, 20 A.2d 473; Ready v. Peters, 119 Vt. 10, 11, 117 A.2d 374 and cases there cited.

The defendants owned and operated a roller-skating rink on the Barre-Montpelier road, called the Paradise Ball Room, where they charged an admission fee and allowed the public to roller skate. After paying the admission charged the plaintiff fell and was injured while roller skating on the defendants' Ball Room floor. The defendants admitted that the plaintiff was a business invitee and the trial court charged that the plaintiff was a business invitee. No exception was taken to this charge. In this situation the defendants owed to the plaintiff the duty to use reasonable care to keep the premises in a safe and suitable condition so that the plaintiff would not be unnecessarily or unreasonably exposed to danger and if a hidden danger existed, known to the defendants, but unknown and not reasonably apparent to the plaintiff, to give warning [120 Vt. 204] of it to the latter, who had a right to assume that the premises, aside from obvious dangers, were reasonably safe for the purpose for which she was upon them, and that proper precaution had been taken to make them so. Wakefield v. Levin, 118 Vt. 392, 397, 110 A.2d 712 and cases there cited.

The roof of the Ball Room building is rather flat and is not sloped enough to drain off easily. The roof leaked when it rained and the water dripped on the floor used for roller skating, leaving wet spots on the floor and making the floor more slippery for skating. These facts were known to the defendants but they permitted skating whether or not the floor was wet and there was no warning sign respecting wet floors or respecting wet spots on the floor.

According to records kept for the United States Weather Bureau at Northfield, Vermont, ten miles from the Paradise Ball Room, it rained on May 31, 1955 and, on the following day June 1, there was a heavy rain all day, totaling 1.37 inches. The official records kept by the U. S. Weather Bureau show the rainfall at the Montpelier-Barre Airport on May 31, 1955 totaled .99 inches and on June 1, 1955 1.19 inches. In Montpelier it rained all that evening. It was raining when the plaintiff entered the Ball Room and was raining when she left after her accident. At that time the plaintiff was 22 years old, had four years experience at roller skating, had good balance and control, and was better than an average...