da Rosa v. First Nat. Stores, Inc.

• Citation: 4 A.2d 918
• Decision Date: 14 March 1939
• Docket Number: Nos. 8047, 8048.,s. 8047, 8048.
• Parties: DA ROSA v. FIRST NAT. STORES, Inc. (two cases).
• Court: United States State Supreme Court of Rhode Island

4 A.2d 918

DA ROSA

v. FIRST NAT. STORES, Inc. (two cases).

Nos. 8047, 8048.

Supreme Court of Rhode Island.

March 14, 1939.

Exceptions from Superior Court, Providence and Bristol Counties; Philip C. Joslin, Judge.

Actions of trespass on the case for negligence by Joseph Da Rosa and by Alice Da Rosa against the First National Stores, Inc., to recover for injuries sustained by Alice Da Rosa when she slipped and fell in defendant's store. Verdict was directed for defendant, and plaintiffs bring exception.

Exception overruled and case remitted for entry of judgment on verdict.

Peter W. McKiernan, McKiernan, McElroy & Going, William E. Walsh, and Curry & Walsh, all of Providence, for plaintiff.

Henry M. Boss, of Providence, for defendant.

CONDON, Justice.

These are actions of trespass on the case for negligence which were tried together before a justice of the superior court and a jury. At the conclusion of the evidence, a verdict was directed for the defendant in each case. The plaintiffs are now in this court on their exception to these rulings of the trial justice. Both actions arise out of an accident to the plaintiff Alice Da Rosa in the defendant's store. Since the decision of her exception will also govern that of the plaintiff Joseph Da Rosa, her husband, we shall, in what follows, speak of these actions as one case, namely, that of the wife, Alice Da Rosa.

The only question raised by the single exception is: Did the trial justice err in granting defendant's motion to direct a verdict? The plaintiff argues that the trial justice erred because there was evidence in the record on which the jury could reasonably have found in her favor and because he weighed the evidence in deciding the defendant's motion for a directed verdict. On the other hand, the defendant contends that there was really no evidence of any negligence on its part and, there fore, that the trial justice decided correctly in directing a verdict in its favor.

It appears from the evidence that the plaintiff fell on the floor of the defendant's store in Pawtucket on the night of October 23, 1937, and, as a result of this fall, she sustained severe and painful injuries. She had gone to the store at about 8:15 or 8:20 o'clock, p. m., for the purpose of purchasing some provisions at the grocery counter, which was on the left side of the store as one enters from the street. She walked safely to the counter and spent some twenty minutes there making her purchases, after which she started to leave the store, followed by an employee of the store who was carrying her bundles. When she was about two or three feet from the door and about in the center of the floor, between the grocery counter and a vegetable counter, she slipped and fell to the floor in a sitting position.

In her testimony plaintiff did not state what she slipped on, if anything, as apparently she did not know what caused her to fall. She did testify, however, that she felt as though there was something under her right foot which made her slip, and that when she put her hand on the floor to assist herself in rising, she felt something under it "that felt like a leaf," but that she did not look at it and did not know whether it was actually a leaf. She further testified that the floor was wet and that it had been raining hard all that day.

There was also testimony for the plaintiff by a witness, Dorothy Silva, that she was in the store earlier in the day on which the plaintiff fell, at about 5:30 o'clock, p. m., and that she noticed some brown leaves on the floor near the door. Aside from this testimony and the testimony of the plaintiff, there is no direct evidence that there were leaves or a leaf on the floor when she fell in the evening, and there is no direct evidence that she slipped on a leaf. In other words, if there is any evidence at all of the plaintiff having slipped on a leaf on the wet floor, it can exist only by reason of inferences from this testimony of the plaintiff and Miss Silva.

Defendant's witness, William J. Hayhurst, the clerk who was carrying the plaintiff's bundles as she was leaving the store, testified that there were no leaves on the floor at the time of the accident. Another witness for the defendant also testified that there were no leaves or other foreign substances on the floor. The manager of the store testified that the plaintiff came to the store several weeks before trial and asked him if he knew there was something on the floor and that he said: "No"; that he had to watch the floor a "little more carefully during the rainy weather"; and that he "didn't know there was anything on the floor" on the evening of the accident. From this the defendant's counsel argues that here is corroboration of the plaintiff's lack of knowledge of anything being on the floor and that her testimony that she felt something like a leaf when she put her hand on the floor is pure conjecture.

On defendant's motion for a directed verdict, it was the duty of the trial justice to view all of this evidence most favorably to the plaintiff. It was not then within his province to pass upon the credibility of the witnesses or to weigh their testimony. From our examination of what the trial justice said to the jury in directing them to give their verdict for the defendant, it appears to us that the trial justice properly performed his duty, at least as to that part of the evidence on which plaintiff relied to prove that her fall was caused by slipping on a leaf on the wet floor. The trial justice said: "There is nothing in that testimony which shows, and this is all the testimony this woman gave on the question of how she fell, there is nothing that shows she slipped and fell on a leaf. By guesswork we might assume that that was so, but under the law neither the Court nor the jury has a right to guess." In other words, he took the view that there is no evidence on which the jury could find for the plaintiff, because there is no evidence in support of her allegation, as more specifically set out in her bill of particulars, that she slipped on wet leaves or a foreign substance, causing her to fall.

The plaintiff objects to this part of the trial justice's decision, on the ground that on all the evidence the jury could reasonably have inferred that the leaves, which Miss Silva saw on the floor at 5:30 o'clock in the afternoon, were still there at 8:20 o'clock in the evening, when the plaintiff entered the store and that, twenty minutes thereafter, plaintiff slipped on them when she was leaving the store. Pursuing this line of reasoning, she claims that the instant case calls for the application of the following principle as laid down in Vrooman v. Shepard Co., 57 R.I. 445, 190 A. 452, 454: "While it is not possible to rest a case upon mere speculation, yet the plaintiff is not required, in all cases, to produce positive and direct evidence of an eyewitness to the alleged negligence. Its negligence may be established by indirect and circumstantial evidence, and by sufficient proof of other facts and circumstances from which such negligence may be fairly and reasonably inferred. Proper inferences from other proven facts, when considered in connection with all of the evidence, may satisfy reasonable minds that they lead to a logical conclusion that the injury resulted from the defendant's negligent acts, and they are for the jury to determine."

In that case the plaintiff proved by direct evidence that her injury was caused by the closing of a heavy outside casing door of an elevator on her shoulder while she was in the act of entering the elevator at the invitation of the defendant's employee. There was no evidence as to what caused the door to close. It was admitted by the defendant that the elevator was under the exclusive control of its employee and that the opening and closing of the door was by manual operation. The defendant's employees, the elevator operator and the elevator starter, both denied closing the door on the plaintiff. On these facts the trial justice found that the accident was unexplained, as to defendant's negligence, and he directed a verdict for the defendant. This was held by us to be error, because, on the principle above stated, there were sufficient facts established by direct evidence from which the jury could reasonably have inferred that the defendant's employee closed the door while the plaintiff was in the act of entering the elevator.

Obviously these facts differ widely from those in evidence in the instant case. Here there is no direct evidence of the cause of plaintiff's fall. She testified that her foot slipped but she cannot say what she slipped on. There is no direct evidence of any foreign substance on the floor at the time of the accident or of any condition of the floor that might have caused her to slip. In other words, there is a clear lack of any such direct evidence as was presented in the Vrooman case, supra, which...