Bowerman v. Greenberg

• Decision Date: 15 January 1943
• Docket Number: 31488.
• Citation: 7 N.W.2d 711,142 Neb. 721
• Parties: BOWERMAN v. GREENBERG et al.
• Court: Nebraska Supreme Court

7 N.W.2d 711

142 Neb. 721

BOWERMAN v. GREENBERG et al.

No. 31488.

Supreme Court of Nebraska

January 15, 1943

Syllabus by the Court.

1. "A motion for a directed verdict must, for the purpose of a decision thereon, be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed, and said party is entitled to have every controverted fact resolved in his favor, and to have the benefit of every inference that can reasonably be deduced from the facts in evidence." Moncrief v. Interstate Transit Lines, 129 Neb. 168, 261 N.W. 163.

2. "In an action for negligence, the burden is on the plaintiff to show that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury or a cause which proximately contributed to it." Miller v. Abel Construction Co., 140 Neb. 482, 300 N.W. 405.

3. "'The proprietor of a store is not an insurer against accidents to customers, but is bound to exercise reasonable care and prudence to keep the premises, which the public is tacitly invited to use, safe for that purpose.' Glenn v. W. T. Grant Co., 129 Neb 173, 260 N.W. 811." Rankin v. J. L. Brandeis & Sons 135 Neb. 86, 280 N.W. 260, 122 A.L.R. 1475.

4. "Negligence is not presumed; the mere happening of an accident does not prove negligence." Bowers v. Kugler 140 Neb. 684, 1 N.W.2d 299.

5. "The burden of proving a cause of action is not sustained by evidence from which negligence can only be surmised or conjectured." Bowers v. Kugler, 140 Neb. 684, 1 N.W.2d 299.

6. Record examined, and evidence found insufficient to warrant submission of the cause to the jury. Motion for a directed verdict properly sustained.

Arthur C. Pancoast, of Omaha, for appellant.

Gaines & Shoemaker, of Omaha, for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.

MESSMORE Justice.

This is a damage action for personal injuries sustained by the plaintiff in a fall on a rubberized mat, stripped and woven together with wire, that is spread before the entrance into the defendants' store at 1518 Farnam street in the city of Omaha, Nebraska. At the conclusion of the plaintiff's evidence, a motion for a directed verdict was sustained. Motion for a new trial was overruled. The plaintiff appeals.

The record discloses that the plaintiff, a widow, employed in a clerical position at the Supreme Council of the Woodmen Circle for about the past eight years, left her place of employment, together with other employees, in a cab, at Thirty-third and Farnam streets in Omaha for a downtown district, on June 18, 1941, the plaintiff having a half-hour for lunch between 12 and 12:30. After arriving at her downtown destination, she proceeded to the defendants' store, which is between Fifteenth and Sixteenth streets on Farnam, facing south, to have her glasses repaired. She entered the store without noticing the rubberized mat, or that it had any raises in it or corners curled, and, having 10 minutes to spare, she left the store with the intention of turning west, crossing the intersection and then proceeding north to the Brandeis store. It was while she was leaving the store that the accident happened. As the question involved is the sufficiency of the evidence to take the case to the jury, we shall recite the evidence which deals with the fall, causing plaintiff's injury.

The mat in question is made of reclaimed rubber-tire casings, stripped and woven together with wire, and is about 30 inches wide. The entrance to the doorway of the store is approximately four feet in width, which would leave nine inches on each side of the mat, with windows and show cases on either side. The mat is fastened with pins or pegs at the top end, next to the door leading into the store, that hold the mat in place. One pin was missing and had been missing for a number of years. It had worked loose from the cement and was removed by the defendants. The mat had been in use for several years. It extended the length of the ramp and and a few inches beyond the entrance. There was a steep incline into the door from the entrance, 10 feet in length. The plaintiff was just nearing the end of the mat, was going to make the turn to the west, and was not off of the mat, when she fell.

With reference to the accident plaintiff testified as follows:

"Q. Did you get clear out of the entrance way? A. No, I had not left the entrance way. I was just nearing the end of the runner, or this mat, and was conscious of going to make this turn, but I had not left, or was not off that mat. I was nearing the end of it, just the same as if you were approaching the street and starting across, you are conscious of watching those lights.

"Q. What happened then? A. Something caught me and jerked my feet out from under me and pitched me out onto the sidewalk. (It might be remarked here that the plaintiff was wearing shoes with Cuban heels, about one and three-fourths inches in height and known as a sensible heel.)

"Q. How did you land there as to your arm and hand and so on? A. I am left handed and was carrying a white underarm bag. I was carrying it under this arm, holding it like this (indicating), and as it pitched me I threw out my left hand to break the fall, and came down on my knee, square, breaking the patella bone of the knee cap.

"Q. Of course, at the time you didn't know that? A. No, I didn't know what had happened, but I was injured and in excruciating pain. I knew that. ***

"Q. Well, just tell us a little more in detail how this happened? A. Something jerked my feet out from under me. I don't know which foot it was, but it just jerked me and pitched me head first out on the sidewalk.

"Q. What was it that jerked? A. It was the mat.

"Q. What was the mat doing when it jerked you? A. Well, it evidently slipped, because it threw me with terrific force."

This answer was objected to but was permitted to stand. Cross-examination:

"Q. You don't have a definite recollection then as to how far from the end of the mat you were, or how far from the side of the mat you were when you fell? A. I know I had not made the turn, and I know I was near the end of the mat. ***

"Q. So that any slipping of the mat would have to be in a north and south direction? A. Not necessarily. If I was ready to make the turn, it would have pulled me.

"Q. Ready to make the turn? A. Yes, if I was nearing the turn. I wouldn't have been out beyond the line, but at the same time, ready to take the step for making the turn.

"Q. But you don't know, except from your own conclusion, just what you were doing, do you? A. Yes, I do. I know that my feet were jerked out from under me.

"Q. Did you see anything unusual on the mat at all when you were coming out? A. No, nothing unusual at all. I don't recall anything. ***

"Q. You don't know which foot it was? A. No, I am not positive."

A brother-in-law of the plaintiff, who was a building inspector for the city, inspected the mat the day after the plaintiff's fall. When asked about the condition of the mat, he stated: "The mat is made of strips or rubberized cloth, fastened together with wires, and at the time I saw it right after the accident, there was quite a marked curl at the edges. The mat wasn't lying perfectly flat on the ramp going into the store. The edges were slightly curled, and apparently, at that time, the lower end was loose, so that the mat could be moved backward and forward if a person stepped on it.

"Q. Did you notice anything further about the mat except the curling of the corner, when you saw it the next day? A. Oh nothing,-the mat shows considerable wear, but not so bad. ***

"Q. Have you seen the mat at different times, Mr. Bowerman? A. Yes, I have noticed it several times since then.

"Q. Did you notice at times when it was changed, as to its curled corners, and so on? A. No,...