Buttnick v. J. & M., Inc.

• Decision Date: 20 July 1936
• Docket Number: 26032.
• Citation: 59 P.2d 750,186 Wash. 658
• Court: Washington Supreme Court
• Parties: BUTTNICK v. J. & M., Inc.

59 P.2d 750

186 Wash. 658

BUTTNICK v. J. & M., Inc.

No. 26032.

Supreme Court of Washington, En Banc.

July 20, 1936

Appeal from Superior Court, King County; Roscoe R. Smith, Judge.

Action by Morris Buttnick against J. & M., Inc. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded for a new trial.

Perry R. Gershon, of Seattle, for appellant.

Whittemore & Truscott, of Seattle, for respondent.

STEINERT, Justice.

This is an action for damages for personal injuries sustained by a patron of a restaurant, occasioned by his slipping and falling on a stairway leading from the restaurant to a street. The case was tried Before a jury. At the conclusion of plaintiff's evidence, the defendant moved for a judgment of nonsuit. The motion was granted, and a judgment of dismissal with prejudice was subsequently entered. Plaintiff has appealed.

The only question upon the appeal is whether the evidence was sufficient to make a case for the jury.

A challenge to the sufficiency of the evidence or a motion for nonsuit admits the truth of plaintiff's evidence and all inferences that can reasonably be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, or in the light most favorable to the plaintiff. Weinman v. Puget Sound Power & Light Co., 175 Wash. 73, 26 P.2d 395; Ball v. Pacific Coast Railroad Co., 182 Wash. 221, 225, 46 P.2d 391.

Stating the case according to, and within the limits of, this rule we give the facts as follows: For about five years prior to August 28, 1934, respondent, J. & M., Inc., had conducted a restaurant in a building located at the southwest corner of First Avenue South and Washington street, in the city of Seattle. The building fronts on First Avenue South and extends back westerly along Washington street. There is an entrance to the restaurant on First Avenue So. In the rear of the restaurant is a cardroom which has an entrance on Washington street. A lunch counter extends along the northerly side of the restaurant, and in front of the counter is a row of stools for use by the patrons while eating. Back of the counter, and two or three feet from its westerly end is a door opening onto a flight of four steps constructed within the building and leading to the sidewalk on Washington street. The door is somewhat smaller than the other two entrance doors to which we have previously alluded. The smaller door and the stairway are used by employees of the restaurant in bringing in supplies and carrying out garbage. In order to reach this door from the main portion of the restaurant, one must pass around the end of the lunch counter and then, after turning to the right, proceed two or three feet. It has for many years been the common practice of the public to use this stairway and door for purposes of ingress and egress to and from the restaurant. In fact, at times, particularly during the regular meal hours, the door has been kept open to attract the trade from Washington street and points west of First Avenue South.

Through long and continued use, the steps of the stairway have become considerably worn, so much so that the treads slope downward an inch or more. In addition to this, grease and refuse from the restaurant have been allowed to spill and remain on the steps, causing slippery spots on their surface.

Prior to the time hereinafter referred to, appellant had been a frequent customer of the restaurant and on a number of occasions had used the door back of the lunch counter as an exit. He had also frequently observed other patrons coming into, and going out of, the restaurant through the same door. He had never used the door which led from the cardroom to Washington street.

On the day of the accident, August 28, 1934, appellant entered the restaurant from the First Avenue South entrance and had breakfast at the land counter, occupying a stool near its westerly end and opposite the exit to Washington street. After he had completed his meal, he went around the end of the counter and out through the door back of it, proceeding in his usual manner of walking, and intending to go to his place of business on Railroad avenue which is west of First Avenue So. On one of the steps, his feet suddenly slipped out from under him, throwing him down upon the sidewalk. As a result, he sustained a broken hip. The...