Cardall v. Shartenberg's Inc., 8423.
| Decision Date | 18 March 1943 |
| Docket Number | No. 8423.,8423. |
| Citation | 31 A.2d 12 |
| Parties | CARDALL v. SHARTENBERG'S, Inc. |
| Court | Rhode Island Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Providence and Bristol Counties; Alberic A. Archambault, Judge.
Action on the case by Nellie M. Cardall against Shartenberg's, Inc., for injuries sustained when plaintiff fell on a wet terrazzo floor in an entrance vestibule of defendant's store. At the end of plaintiff's testimony, defendant's motion for nonsuit was denied. Judgment was for defendant upon a directed verdict, and plaintiff brings exceptions.
Exceptions sustained and case remitted for new trial.
William M. Mackenzie, of Pawtucket, for plaintiff.
Frederick W. O'Connell and Swan, Keeney & Smith, all of Providence, for defendant.
This is an action on the case to recover for injuries which were sustained by the plaintiff, in slipping and falling on the wet pavement of a vestibule connecting the interior of the defendant's department store with the sidewalk, and which she alleges were caused by the defendant's negligence in not putting on such pavement, which was then dangerously slippery because of its wetness, temporary floor mats or covers or other protecting materials. The plaintiff had entered the store for the purpose of buying some goods and therefore the defendant owed to her, as an invitee, the duty of using reasonable care to see that the floors of the store, including those of the entrances, were in a safe condition to be walked upon.
At the conclusion of the evidence for both parties at a jury trial, the trial justice, on motion of the defendant, directed a verdict in its favor, solely on the ground that the evidence clearly showed that the floor of the vestibule was properly constructed according to established practice in the construction of floors in such buildings as that of the defendant. Such a verdict was returned accordingly. The plaintiff took an exception to this direction, and the case is now before us on a bill of exceptions by her, setting forth this exception and seven other exceptions, which were taken by her to rulings by the trial justice as to the admission of testimony.
The following facts were shown by testimony that was uncontradicted and unimpeached: The plaintiff's slipping and falling occurred on February 19, 1940, as she was leaving, by the more northerly of two vestibules for entrance and exit, the defendant's department store, located in the city of Pawtucket on Main street, which runs about north and south. In front of that store there was quite a slope down in the street from north to south. The upper part of the store extended over these vestibules, which were, at the time, open on the sidwalk side and paved with a hard substance known as terrazzo, which is a mixture of Portland cement, marble chips, sand and water, with a certain amount of an abrasive in it, called “carborundum” or “alundum”. This pavement had been laid in 1939, late in the fall.
In the northern vestibule there was a slope down, from the four doors between the vestibule and the interior of the store, to the sidewalk. On the north side of the vestibule the slope was 3 1/2 to 4 inches in 10 1/2 feet, the distance from the doors to the sidewalk. On the south side of this vestibule the slope was 4 1/2 to 5 inches in 10 1/2 feet, the greater slope on that side being due to the fact that the sidewalk sloped down from north to south. Therefore, to one walking from the east side to the west side of the vestibule, there was a slight and increasing downward slope sideways, from north to south, as well as the greater slope down from east to west.
The plaintiff had been in the store many times after the changes had been made in the vestibules, but could not remember whether she had been there on rainy days during that period of a few months. She nearly always used the southern one; but she thought that she had been through the northern one once and only once during that period and had noticed that the slope was greater there.
On the day of the accident the temperature was just above the freezing point. There was moist snow from about 5:30 a.m. to 7:15 a.m., then sleet and rain until 10:15 a.m., and then moist snow until 4:35 p.m. The plaintiff entered the store at about 12:50 p.m. by the southern vestibule. At that time the vestibule was wet and she was wearing overshoes of heavy cloth.
She went up to the third floor and soon afterward came down and started to go out through the northern vestibule, using one of the two middle doors there. She was carrying only a handbag in her hand and an umbrella on her arm. Then, as she was making her second step after passing through the doorway, she fell and received the injuries complained of in this case. She testified that she slipped on the water on the “tile”, evidently referring to the terrazzo, and that the tile was very wet and slippery.
A witness, who as the time of the trial was the president of the American Institute of Architects, gave expert testimony for the plaintiff. He said that he had been a practicing architect in this state for about nineteen years, had supervised the actual erection and construction of buildings and had become familiar with building materials of various types, it being a part of his work to see that the specifications were carried out by contractors and subcontractors and that proper materials were used, including the material that went into the entrances of buildings and “the use of the pavement for such entrances.”
He testified that terrazzo entrances to buildings were a common type of construction and that just about a year after the plaintiff's accident in the instant case he had examined the floor of the vestibule where the accident had occurred. There was no claim that any change had been made in the interval. He testified that the slipperiness of a terrazzo floor would depend upon how much abrasive material it contained at the surface; that the less of such material there was the more slippery the floor would be; and that he thought that the surface of a piece of terrazzo without any abrasive material in it would be very smooth, hard and slippery.
He testified also that the proportion of abrasive in the surface of such a floor could be determined by looking at it and examining the particles and the colors at the surface; that he had so examined that surface and had also used a small knife on the particles there and had tried the floor's reaction under his feet, apparently to find out how slippery it was as a means of determining how much abrasive was in the surface; and that his examination had proved to him that there was very little abrasive material, if any, in that floor. His conclusion was that in that surface it would not go over 4% or 5%, approximately. He also testified that the presence of water on the floor would tend to make it more slippery. His testimony was in support of the allegation in the plaintiff's declaration that at the time of her fall the floor was dangerously slippery because of its wetness. At the end of the testimony for the plaintiff a motion for a nonsuit was denied.
For the defendant there was testimony that the use of terrazzo for floors of entrances to buildings had become very common and was standard practice. A man who was a member of the firm that had the contract for making the alterations in the defendant's store, as a part of which the terrazzo floors in the entrance vestibules were laid, testified that in the specifications was the following: “Furnish and lay for entrance vestibules best quality 1 1/2 inch Terrazzo with 40 per cent alundum mix, all to be thoroughly polished on completion.”
The superintendent of the firm that specialized in marble tile and terrazzo work and had the subcontract for laying the vestibule floors for the defendant testified as a witness for the defendant. He testified that he personally supervised the work of laying these floors, which he said were completed the latter part of 1939 or the first part of 1940; that the pitch was normal, though at the corner where the pitch was the greatest, on account of the drop in the sidewalk, it might be a little steep; that there was between 30% and 40% of abrasive in the terrazzo in those floors; and that this was according to the standard of good construction.
He also testified that after such a...
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