Cowden v. Earley
Decision Date | 30 July 1958 |
Citation | 214 Or. 384,327 P.2d 1109 |
Parties | Elizabeth Caroline COWDEN, Respondent, v. Ann EARLEY and Joe Earley, Jr., d.b.a. Osburn Hotel, Appellants. |
Court | Oregon Supreme Court |
Sidney E. Thwing, Eugene, argued the cause for appellants. On the brief were Thwing, Jaqua & O'Reilly, Eugene.
E. B. Sahlstrom, Eugene, argued the cause for respondent. On the brief were Thompson & Sahlstrom, Eugene.
Before PERRY, C. J., and ROSSMAN, BRAND and McALLISTER, JJ.
This is an action to recover damages for personal injuries sustained by the plaintiff, Elizabeth Cowden, when she slipped and fell in the Osburn Hotel owned and operated by the defendants, Ann Earley and Joe Earley, Jr. The jury returned a verdict for plaintiff and from a judgment based thereon, defendants appeal.
The defendants contend that there was no substantial evidence of any negligence on their part proximately causing plaintiff's injury and that plaintiff, as a matter of law, was guilty of contributory negligence. These contentions were raised in the trial court by a motion for a directed verdict, a motion for judgment notwithstanding the verdict and an alternative motion for a new trial. The denial of each of these motions is assigned as error in this court. Since our conclusion as to the motion for directed verdict will be decisive of the appeal, we will confine our attention to that question.
Plaintiff was employed as a sales representative by the Stanley Home Products, Inc. and was injured on November 16, 1953, while attending a sales meeting held by her employer in a room in the basement of defendants' hotel in Eugene. The meeting convened at about 9:30 o'clock in the morning and was attended by about 60 to 70 persons. Plaintiff drove to the hotel in her car which she parked in the street nearby. She entered the hotel through the west entrance, crossed the lobby and walked down the stairway to the basement. The stairway led from the lobby to a rectangular landing eight feet ten inches long and five feet ten inches wide, the approximate width of the stairway. There was a bannister on the left side of the stairway and a handrail along the right wall extending from the lobby to the landing. From the side of the landing on the left, proceeding downstairs, there were two additional steps leading to the floor of the basement. The stairs and landing were covered with asphalt tile. It was raining during the morning.
The sales meeting was recessed about 11 o'clock so that those who had parked cars in the street could put coins in the meters. Plaintiff walked out to her car for that purpose. She left the hotel by the same stairway and entrance by which she had entered earlier in the morning. After placing a coin in the meter, plaintiff returned to the hotel by the same route and proceeded down the stairway using the handrail on the right side. As she approached the landing, plaintiff for the first time noticed a wet spot about 18 to 20 inches in diameter near the center of the landing. The remainder of the landing was free from water or debris. As she crossed the landing she stepped on the wet spot and slipped and fell and as a result sustained an injury to her spine.
In her complaint plaintiff alleged that as she proceeded down the stairway and onto the landing 'her foot was caused to slip on an accumulation of water and debris upon the landing of said stairway.' Plaintiff further alleged that the defendants were negligent in the following particulars:
(1) In allowing water and debris to accumulate and lie upon the stairway and landing;
(2) In failing to adequately light the stairway and landing;
(3) In failing to provide a handrail along the landing; and,
(4) In failing to provide a handrail on the steps leading from the landing to the basement floor.
The rule of law applying to a case of this kind is well established. An invitee who is injured by slipping on a foreign substance on the floor or stairs of business property must, in order to recover from the occupant having control of said property, show either:
(a) That the substance was placed there by the occupant, or
(b) That the occupant knew that the substance was there and failed to use reasonable diligence to remove it, or
(c) That the foreign substance had been there for such a length of time that the occupant should, by the exercise of reasonable diligence, have discovered and removed it.
De Mars v. Heathman, 132 Or. 609, 616, 286 P. 144; Morrison v. Pacific Northwest Public Service Co., 146 Or. 225, 245, 30 P.2d 344; Gardner v. Regal Fruit Co., 147 Or. 55, 58, 31 P.2d 650; Lopp v. First National Bank, 151 Or. 634, 638, 51 P.2d 261; Lee v. Meier & Frank Co., 166 Or. 600, 604, 114 P.2d 136; Starberg v. Olbekson, 169 Or. 369, 373, 376, 129 P.2d 62; and Waller v. Northern Pacific Terminal Co. of Oregon, 178 Or. 274, 304, 166 P.2d 488.
Measured by the foregoing rule, we think the court erred in failing to direct a verdict in favor of defendants. Assuming that plaintiff was caused to fall by slipping on a foreign substance on the landing, there is not the slightest evidence in the record tending to prove that the defendants had placed the substance there, knew that it was there, or in the exercise of reasonable care, should have known it was there and removed it.
The plaintiff, who had walked across the landing and up the stairs only a few minutes earlier, testified that she saw the wet spot for the first time on her return to the basement when she was still a few steps above the landing. Two witnesses called by plaintiff testified to the presence of water on the stairs. One did not recall The other, when asked what she had noticed with respect to the landing and steps, said Whether or not there was water on the landing, in view of this evidence and the testimony of plaintiff, would have been a question for the jury. But there was a complete lack of evidence tending to show that the water on the landing, if any, had been there for such a length...
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