Cahow v. Michelas

• Decision Date: 31 May 1944
• Docket Number: 3396.
• Citation: 149 P.2d 233,62 Nev. 295
• Parties: CAHOW et al. v. MICHELAS.
• Court: Nevada Supreme Court

149 P.2d 233

62 Nev. 295

CAHOW et al. v. MICHELAS.

No. 3396.

Supreme Court of Nevada

May 31, 1944

Appeal from District Court, Eighth District, Clark County; George E Marshall, Judge.

Action by Fae Eva Cahow and her husband, Raymond Cahow, against Theodore Michelas for injuries alleged to have been sustained by plaintiff wife in the course of her employment as a waitress in defendant's restaurant. From a judgment in favor of the plaintiffs and from an order denying motion for a new trial, the defendant appeals.

Affirmed.

Lewis & Hawkins, of Las Vegas, for appellant.

Morse & Graves, of Las Vegas, for respondents.

TABER Justice.

The Eighth Judicial District Court, Clark County, awarded plaintiffs $600 damages for personal injuries alleged to have been sustained by Mrs. Cahow in the course of her employment as a waitress in defendant's restaurant (the Nevada Cafe) at Las Vegas, and $429 for consequent loss of wages. Defendant has appealed from the judgment, and from an order denying his motion for a new trial.

One of Mrs. Cahow's duties was to carry dirty dishes from the front part of the cafe back to the kitchen, and place them on the drainboard of the sink. There was a swinging door near the middle of the partition between the front part of the cafe and the kitchen, and the sink and drainboard were in the kitchen corner immediately to the right of this door as one passed through it going from the main room back into the kitchen. The floor in the front room was covered with linoleum; the kitchen floor was of concrete and was usually kept dry and clean. There were some booths and a counter in the front part of the cafe, and most of the cooking was done near the window in that room. The kitchen or back room, was used for such purposes as washing dishes cutting meat, preparing vegetables, making ketchup and cooking soup stock.

According to Mrs. Cahow's testimony the accident which caused her injury happened about 11:20 p. m. on January 31, 1942. She was carrying some dishes from the counter in the front room of the cafe back to the drainboard and sink in the kitchen. Having passed through the connecting doorway, and just before reaching the drainboard and sink, she slipped and fell on the cement floor, dropping the dishes, some of which were broken. As she rose from the floor she noticed that the place where she had slipped was wet and "slick". When she was in the kitchen about half an hour before the accident, she had seen some ketchup which had been spilled at this place on the floor. There was quite a large puddle of ketchup--also pieces of a broken ketchup bottle. The floor was dry except where the ketchup was. Between the time when she saw the ketchup and broken glass on the kitchen floor just in front of the drainboard and sink, and the time of the accident, she had served four or five customers in the front part of the cafe. At the time she fell the ketchup had been cleaned up, but the place where it had been was wet with water and very slippery. With the exception of the place where the ketchup had been mopped up, the kitchen floor was dry. After getting up off the floor where she had fallen, Mrs. Cahow went into the front part of the cafe and remarked, "Why didn't they put salt on the floor?" After serving a cup of coffee or two she returned to the kitchen and thinks that she said to the cook, "Why didn't you put some salt on the floor?" Then she picked up the salt container and tried to put salt on the floor. The cook grabbed it out of her hand, put a sack and apron on it and said, "If you act like that you will have to take a walk." Then she walked into the front room of the cafe.

Claud Wood, an employee of Sears Roebuck & Co. in Las Vegas, testified in behalf of plaintiffs that he was in the cafe when the accident happened. He heard a noise, looked and saw Mrs. Cahow pick herself up off the floor. He heard dishes drop, and looked over the counter and she was getting up off the floor. He did not see her fall, but heard a noise, looked around and saw her bracing herself on her hands to get up. After she got up and walked into the front room of the cafe he heard her say, "Why didn't they put salt on the floor?"

Gus Kamilos, employed as cook at the time of the alleged accident, testified in behalf of defendant that he had a can of water on the grill in the front room of the cafe to keep the water warm in case he wanted to "boil anything up". In taking this can of water back to the kitchen he kicked the swinging door with his foot "and the bottle goes back and I spilled water on the floor". He then put something under the door to make it stay open, got a mop and was cleaning the water up when Mrs. Cahow came through the door into the kitchen. "I said to her, 'Wait a minute.' She stood where she was and that minute I heard the dishes and glasses fall right in front of me and I went on with the dust pan and picked all of those up to dry it up and she says to me, she says, 'Put some salt on it.' She went up to work on the counter again, and I finished the mopping. Then I go back to my work." The door was standing open when Mrs. Cahow came back to the kitchen, and there was a plain view from the front to the back. He was mopping up when she came into the kitchen. She dropped the dishes and glasses, but did not fall. She picked up the dishes and glasses, except those that were broken; then she returned to the front room of the cafe. There wasn't any ketchup spilled on the floor before he spilled the water and mopped it up. Claud Wood had not been in the cafe any time during January while Kamilos was on shift. The floor was not slippery where he cleaned it up. It was clean water. Mrs. Cahow walked with the ankle of her right foot turned over to one side. He thinks she dropped the dishes and glasses because she twisted her ankle.

She did not fall, and was not sitting on the floor at any time. She did not slip at all. She did say, "Why didn't you put salt on the floor?", and she went out to get the salt herself, but he told her to "pick up all those glasses and water from the floor". She had dropped glasses and dishes, and there naturally was more water and glasses there. She did not put salt on the floor. He did not grab any salt container out of her hand, and did not say any such thing to her as, "If you act like that you will have to take a walk".

Testimony given by and in behalf of plaintiffs was to the effect that the most serious injury resulting from the alleged accident was that in the lumbar region of Mrs. Cahow's back. Testimony given in behalf of defendant was to the effect that Mrs. Cahow, on a number of occasions, had spoken of an automobile accident in which her back was injured; that she habitually turned her right ankle while walking, and that before the alleged accident she had been observed wearing a brace or a cloth, or something of the kind, around her right ankle and on her right foot. Mrs. Cahow denied saying that she had been in an automobile accident, and denied that she had worn a brace on her right angle at any time while working at the Nevada Cafe. Testimony regarding the nature and extent of Mrs. Cahow's injuries was given by plaintiffs and by Drs. Swank and Wallace; in connection with the medical testimony, X-rays showing back injuries were admitted in evidence, and are on file as part of the record on this appeal.

Plaintiffs' complaint alleged, among other things, negligence on the part of defendant, that said negligence was the direct and proximate cause of Mrs. Cahow's injuries, and that defendant had not accepted the terms of and agreed to be governed by the provisions of the Nevada Industrial Insurance Act of 1913, as amended. The latter allegation was not denied, but defendant's answer specifically denied that Mrs. Cahow received any injuries while in his employ, and further specifically denied that he was at any time careless, negligent or reckless in his conduct or with respect to the condition of his place of business, as set forth in plaintiffs' complaint, or at all.

The trial court found, in part, that defendant "did carelessly, negligently, recklessly and knowingly permit and allow the floor by the sink in the kitchen in said cafe to be wetted and slippery; that it is a fact that at the said time and place and under said conditions hereinbefore set forth the said defendant, Theodore Michelas, did carelessly, negligently, recklessly and knowingly fail to take any precaution or to do any act to remedy the condition of said floor in said kitchen; that it is a fact that the said defendant, Theodore Michelas, did carelessly, negligently, recklessly and knowingly permit the condition on said floor to remain as hereinbefore described for the use of the said plaintiff, Fae Eva Cahow, in her performance of her said duties as hereinbefore set forth; that it is a fact that at said time and place and as herein described and in the performance of her said duties as herein described, the said plaintiff, Fae Eva Cahow, in removing dishes from said table in said cafe to said sink, slipped on said wetted and slippery floor and fell on said floor with such force and violence as to injure her back and to tear ligaments in her back and affect the use of her right arm and to suffer severe and excruciating pains in her back and arm; that it is a fact that the said Fae Eva Cahow was unable to work by reason of said injuries from January 31st, 1942 to June 8th, 1942; *** that since the 31st day of January, 1942, the said plaintiff, Fae Eva Cahow has had to have hospitalization, medical treatment and care for said injuries; that it is a fact that immediately prior to and before receiving said injuries the said plaintiff, Fae Eva Cahow was sound of mind and body, that it is a fact that the...