Celorie v. Roberts Bros., Inc.

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: TOOZE
• Citation: Celorie v. Roberts Bros., Inc., 276 P.2d 416, 202 Or. 671 (Or. 1954)
• Decision Date: 17 November 1954
• Parties: Rose CELORIE, Appellant, v. ROBERTS BROS., Inc., a corporation, Respondent and Cross-Appellant.

Page 416

276 P.2d 416

202 Or. 671

Rose CELORIE, Appellant, v. ROBERTS BROS., Inc., a corporation, Respondent and Cross-Appellant.

Supreme Court of Oregon, En Banc.

Argued before Department 2 on Sept. 29, 1954.

Reargued before Court in Banc and Submitted Nov. 10, 1954.

Decided Nov. 17, 1954.

Thomas H. Tongue, III, Portland, argued the cause for appellant. On the brief were Hicks, Davis & Tongue, and Alton John Bassett, Portland.

Bruce Spaulding, Portland, argued the cause for respondent and cross-appellant. On the brief were Wilbur, Mautz, Souther & Spaulding, Portland.

TOOZE, Justice.

This is an action by plaintiff Rose Celorie against Roberts Bros., Inc., a corporation, as defendant, to recover damages for personal injuries alleged to have been caused by defendant's negligence. The jury returned a verdict in plaintiff's favor in the sum of $15,000, and judgment was entered accordingly. Defendant then moved the court for judgment in its favor notwithstanding the verdict, or, in the alternative, for a new trial. The trial court granted the motion for judgment notwithstanding the verdict; it denied the motion for a new trial. Plaintiff appeals from the judgment in defendant's favor; defendant cross-appeals from the order denying the motion for a new trial.

Defendant owns and operates a large department store in the city of Portland. As a part of its business, it maintains a 'will call' or checking counter for the use and benefit of its customers in checking and storing articles of merchandise. Plaintiff was an employe of the defendant, assigned to work in the 'will call' department.

By her complaint, plaintiff charged defendant with negligence in failing to provide her a safe place to work in certain particulars as alleged. She averred that in performing her work for defendant, it was her duty to render miscellaneous services such as wrapping bundles, delivering packages to the customers of defendant, checking and receiving packages from such customers, and that such duty required her to lift sundry heavy bundles and packages. She alleged: 'In order for plaintiff to perform her said duties she was required to work in cramped and crowded quarters which were cluttered with numerous packages, boxes and other miscellaneous items left by defendant's customers.' She further alleged as follows:

'III.

'On said 26th day of July, 1949, while plaintiff was so engaged on behalf of defendant, she was required to lift a large, awkward and heavy bag placed on said counter by one of defendant's customers, when by reason of said confined and crowded quarters, as plaintiff bent over to lower said bag to the floor, one of the miscellaneous items near plaintiff's feet fell against her so that she was caused to lose her balance, wrenching her body and her back, which injuries are hereinafter more specifically set forth.'

The specific acts of negligence charged against defendant and submitted to the jury are: (1) in (ordering and) requiring plaintiff to lift heavy boxes and packages, considering the cramped quarters and other conditions then and there existing; (2) in failing and neglecting to provide a (chute or) passageway under said counter for customers to use in checking said packages, so as to eliminate the necessity of plaintiff having to handle said heavy and bulky packages; and (3) in failing and neglecting to provide a storage room or other adequate space in which to store properly and pile said bundles and packages checked by defendant's customers. (Note: The words 'ordering and' and 'chute or' shown in parentheses above were taken from the jury by the court in its instructions.)

Defendant by its answer denied negligence on its part and affirmatively pleaded as defenses to plaintiff's cause of action: (1) assumption of risk, and (2) contributory negligence. In her reply plaintiff denied the affirmative allegations of the answer.

In allowing the motion for judgment in favor of defendant notwithstanding the verdict, the trial court based its actions upon two grounds: (1) that the injury to plaintiff was not caused by any negligence on the part of defendant; and (2) that plaintiff assumed such risks of her employment as were included in the cause of her injury.

In determining whether the trial court erred in entering judgment in defendant's favor, we are required to examine the entire record, and from that review ascertain whether there is any substantial evidence to support the jury's verdict. In deciding that question, we must view the evidence in the light most favorable to plaintiff, and give to her the benefit of every reasonable inference that can be drawn therefrom in her favor. Burrows v. Nash, 199 Or. 114, 122, 259 P.2d 106, 107; Glascock v. Anderson, 198 Or. 499, 503, 257 P.2d 617; Willoughby v. Driscoll, 168 Or. 187, 120 P.2d 768, 121 P.2d 917.

Plaintiff was one of three or four persons working in the 'will call' department, whose duties included receiving packages brought to the counter by customers to be checked, getting packages which had been previously purchased by customers on a 'will call' basis, wrapping gifts, writing receipts, making up money orders, selling stamps, receiving cash, and also some bookkeeping work.

In performing their services, plaintiff and her coemployes were required to work 'at quite a pace', particularly on busy days. There is substantial evidence in the record to the effect that on the day of the alleged accident, the employes at the 'will call' counter, including plaintiff, were very busy in handling the business of that department.

In front of the 'will call' department there was a counter four feet high and sixteen feet long, with a passageway at both ends. Behind the counter there was a narrow aisle about three feet in width. Back of this aisle, there were a long table and two desks, which were moved together. There was no open space in front under the top of the counter, nor were there any cubbyholes or shelves in back of the counter for the storage of packages brought in by customers to be checked. The only available space for storing checked packages received over the counter was on the floor under the counter, under and on the table back of the counter, and on the floor in the three-foot aisle between the counter and the table.

All types and sizes of packages were handled at the 'will call' department, including bookcases, chairs, carpet sweepers and lamps. When large packages were brought to the counter for checking, they were not taken over the counter, but were tagged and placed on the floor in front. Other packages were placed by the customer on the top of the counter, and, after checking, were removed therefrom by the employe and stored in such space as might be available behind or under the counter. Frequently shopping bags filled with heavy canned goods, or other heavy articles, were brought to and placed on top of the counter by customers, to be checked and stored. Plaintiff testified that she and her coemployes 'had to take everything over the counter'. Defendant's superintendent in charge of the 'will call' department testified: '* * * if the customer put the package on the counter, we would remove it to the back. If it was a large package, we would check it out in the front of the counter across the aisle from the counter.'

When packages were received at the counter, plaintiff and her coemployes were required to determine for themselves where to place them, i. e., whether to pile them under the counter, place them on the table or in the aisle (when there was no other available space) behind the counter. At times, and particularly on busy days, it was a common practice to pile up checked packages under the counter and on the floor in the narrow aisle to the point where '* * * the packages were all over the floor, around. There just wasn't any place to work, and on a very busy day we just didn't know what we were going to do, trying to get around, get packages, just going in circles, because there wasn't adequate space in which to handle all the packaged goods that came up there.'

A few days prior to the accident in question here, plaintiff and her coemployes complained to the superintendent in charge of their department about the crowded conditions, congestion and confusion, as described above, and asked for more room and a proper place to work. The superintendent told the girls not to worry and promised to correct the conditions complained of, and plaintiff 'took him at his word', continuing in her employment. As to these complaints, Isabelle Long, one of plaintiff's coemployes and a witness for her, testified on direct examination:

'Q. * * * Did you have occasion before Mrs. Celorie was hurt to complain to anybody about that [congestion, etc.]? A. Yes.

'Q. Well, tell the jury about that. A. We had complained about the congestion, the confusion there. We had asked if there wasn't some way that we could have more room or a proper place to work.'

Plaintiff also testified about the complaints made to the superintendent a few days prior to the time she suffered injury. She described the promise of the superintendent as follows:

'A. Well, he told us not to worry, that the conditions would be remedied, that we would either have a new department or better working conditions, more space.'

On the day of the accident, checked parcels were piled under the counter and protruded about a foot into the aisle. Plaintiff was five feet two inches in height, and the counter was four feet high, as above noted. Also, as stated, it was a busy day.

On that day at approximately 10:30 a.m. a customer placed a double-sized shopping bag on the counter to be checked by plaintiff. At the time there were several other customers waiting in line to be served at the counter. The shopping bag had handles on top and was fourteen inches wide and about two feet high. Thus, when the height of the shopping bag was added to the height of the four-foot counter, there was...