Broadston v. Beddeo Clothing Company

• Decision Date: 15 May 1920
• Docket Number: 20970
• Parties: ENNID M. BROADSTON, APPELLEE, v. BEDDEO CLOTHING COMPANY, APPELLANT
• Court: Nebraska Supreme Court

178 N.W. 190

104 Neb. 604

ENNID M. BROADSTON, APPELLEE, v. BEDDEO CLOTHING COMPANY, APPELLANT

No. 20970

Supreme Court of Nebraska

May 15, 1920

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Reversed.

REVERSED.

Brome & Ramsey and J. P. Uvick, for appellant.

Thomas Q. Harrison and James C. Kinsler, contra.

OPINION

DORSEY, C.

The plaintiff, Ennid M. Broadston, brought this action against the defendant, the Beddeo Clothing Company, to recover for personal injuries sustained in falling down a stairway in the defendant's store in the city of Omaha. The verdict and judgment were for the plaintiff, and the defendant appeals.

The plaintiff, having business as a customer with the credit manager of the store, was directed to his desk, situated in a gallery about 10 feet above the main floor and reached by a stairway. After transacting her business, she turned to descend the stairway and took one step down with her right foot, but in attempting to take the next step the heel of her left shoe, she alleged, caught or was twisted in the carpet on the floor of the gallery near the head of the stairway causing her to trip and fall, the heel being detached from the left shoe in the operation.

In her petition the plaintiff alleged that the carpet in which her foot caught was loose, and that the gallery was insufficiently lighted; that the defendant was negligent in permitting the carpet to be loose and in failing properly to light the place; that this was a violation of the duty of the defendant to exercise reasonable care for the safety of those invited into the gallery; and that, if the defendant did not know that the carpet was loose and the gallery insufficiently lighted, it should, by the exercise of reasonable care, have known of those conditions.

The defendant in its answer denied that there was a loose carpet on the stairway or on the floor of the gallery or that there was any deficiency of light, but alleged that the accident occurred because the heels of the shoes which the plaintiff was wearing were too high for safety, and that the heel of her left shoe was insecurely fastened on, causing her to stumble and fall through her own negligence, and not because of any negligence of the defendant.

The defendant's contention is that the plaintiff's evidence is insufficient to sustain the verdict because she failed to produce any affirmative proof of any defect in the carpet in which she claimed her foot caught. Her testimony relating to the carpet was, in substance, that she thought it was the carpet that she was standing on; it felt like it; she felt it twist in contact with her heel and, whatever it was, it wound around her heel and held on very firmly. She felt it pull her heel off and distinctly felt the pull of the carpet; she had no chance to observe whether it was a carpet or the condition of it, but thought it was something like a carpet or a rug. There was no other testimony on plaintiff's part with reference to the carpet. Several witnesses for the defendant testified that the carpet on the stairway, which extended for a short distance beyond the head of the stairway onto the gallery, was practically new, without holes or defects, and was securely tacked down.

The proprietor of a store is not an insurer against accidents to customers, but must exercise reasonable care and prudence to keep the stairways therein, which the public is tacitly invited to use, safe for that purpose. Schnatterer v. Bamberger & Co., 81 N.J.L. 558, 79 A. 324, Ann. Cas. 1912D, 139; Field & Co. v. LeBosky, 133 Ill.App. 316; Lord v. Sherer Dry Goods Co., 205 Mass. 1, 27 L. R. A. n. s. 232, 90 N.E. 1153; Larkin v. O'Neill, 119 N.Y. 221, 23 N.E. 563. The mere fact that a customer falls on a stairway does not raise any presumption of negligence on the part of the proprietor of the store, and the doctrine of res ipsa loquitur does not apply. Brace v. Kirby, 43 Pa.Super. 389; Belsky v. Fourteenth Street Store, 121 N.Y.S. 321.

Where it is alleged as the basis of recovery that the proprietor of the store was negligent in permitting the stairway on which the accident occurred to be defective in some particular causing the plaintiff to trip and fall, as, for instance, that the carpet on it was loose or in a defective condition, the burden is upon the plaintiff to show that such defect existed and was known to the proprietor of the store prior to the accident, or that it had existed for such a space of time prior thereto as to charge the proprietor with notice thereof and afford him a reasonable opportunity to repair the defect. Schnatterer v. Bamberger & Co., supra; Douglas v. Shepard Norwell Co., 217 Mass. 127, 104 N.E. 491; Toland v. Paine Furniture Co., 175 Mass. 476, 56 N.E. 608.

The...