Bickley v. Sears, Roebuck & Co.
| Decision Date | 17 October 1938 |
| Citation | 23 N.E.2d 505,62 Ohio App. 180 |
| Court | Ohio Court of Appeals |
| Parties | BICKLEY v. SEARS, ROEBUCK & CO. |
Syllabus by the Court.
1. In a negligence action, an allegation in the answer that plaintiff's injuries 'were due solely and proximately to the negligence of the plaintiff,' does not raise the issue of contributory negligence, is immaterial and irrelevant and has no place in such pleading.
2. Unless the plaintiff's evidence raises an inference of contributory negligence, the burden of proof as to that issue is upon the defendant, and an instruction to the jury to that effect is proper.
3. A customer in a retail store may assume that the proprietor has performed his duty to exercise ordinary care to keep his store in a reasonably safe condition for customers to go about in the inspection of merchandise offered for sale.
4. Unless warned by the proprietor, a customer entering a retail store where merchandise is displayed to attract attention, is bound only to exercise ordinary care and unless such care requires it is not bound to watch the floor for sticky or oily dust on it, and failure on her part to observe such material under such circumstances is not negligence.
5. In an action for damages alleged to have been sustained by a customer falling in a store, the court, having charged the jury the plaintiff could not recover unless it found she fell and that defendant's negligence proximately caused the fall, may assume some award will be made to the plaintiff if it so finds, for in that event she would be entitled to at least nominal damages for such fall.
6. Whether a statement by an agent of a defendant made after an injury was sustained by the plaintiff was a part of the res gestae and competent evidence is immaterial when defendant's own evidence on the subject is substantially the same as the alleged statement of the agent.
7. Evidence as to the result of experiments made by a party after an accident, to be admissible, must show the facts surrounding the experiments were substantially the same as they were at the time of the accident.
Holliday Grossman & McAfee, of Cleveland, and Krueger, Rosino Moyer & Moore, of Sandusky, for appellant.
McCrystal & McCrystal, of Sandusky, for appellee.
The defendant, Sears, Roebuck & Company, operates a retail store in Sandusky for the sale of a variety of merchandise. In the late afternoon of July 21, 1936, but before time for the store to close, the plaintiff, Ruth E. Bickley, a married woman thirty-four years old, entered the store to look at some merchandise with a view to making a purchase. A clerk directed her to go down an aisle between two counters, to see the desired article. While walking as directed, she slipped on the wooden floor and fell, sustaining some injuries, and for the damage resulting from them she brought this action alleging in substance in her petition the foregoing facts and others. The verdict and judgment were for her for $6,500. The matter is before this court on defendant's appeal on questions of law.
Various errors are assigned by the defendant:
1. The answer is a general denial of negligence and of damages, and contains the further immaterial and irrelevant allegation that the plaintiff's injuries, 'if any there be * * * were due solely and proximately to the negligence of the plaintiff.' This did not plead or raise the issue of contributory negligence. Cincinnati Street Ry. Co. v. Adams, 33 Ohio App. 311, 316, 169 N.E. 480; Glass v. William Heffron Co., 86 Ohio St. 70, 74, 98 N.E. 923; Rayland Coal Co. v. McFadden, Adm'r, 90 Ohio St. 183, 192, 107 N.E. 330. This court has expressed its views on this and the similar immaterial allegation that the injury was caused by a third person. Leopold v. Williams, 54 Ohio App. 540, 546, 8 N.E.2d 476.
If the issue of contributory negligence was in the case as it went to the jury, it was because the evidence raised it. The trial court must have concluded that it was so raised by the defendant's evidence, for he charged the jury upon that subject, and said: 'The burden of proof as to contributory negligence is upon the defendant, and the defendant must prove contributory negligence by a preponderance of the evidence.'
At the conclusion of the charge, counsel for defendant stated orally to the court: 'The defendant requests the court to instruct the jury upon the question that should the plaintiff's evidence raise a presumption of negligence, then the plaintiff will be required to counterbalance or rebut such inference before she is entitled to recover.'
This request was refused. Was the refusal prejudicial error?
While the language used was not very accurate and might not be a proper instruction if tendered in that form before argument, it was sufficiently definite to call the court's attention to the general proposition stated, and was a request for further instruction on it. If the plaintiff's evidence raised an inference of negligence on her part that contributed to cause her injury, this request called attention to the burden of the plaintiff by her evidence to counter-balance such inference, and the failure of the court to grant the request was error. Therefore, the question is one of fact: Did the plaintiff's evidence raise such inference?
The only evidence offered directly by the plaintiff as to how she fell, was her own testimony which was in substance that as she walked down the aisle she did not notice anything on the...
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