Daben Realty Co., Inc. v. Stewart, No. 1171A230

Docket NºNo. 1171A230
Citation290 N.E.2d 809, 34 Ind.Dec. 505, 155 Ind.App. 39
Case DateDecember 29, 1972
CourtCourt of Appeals of Indiana

Page 809

290 N.E.2d 809
155 Ind.App. 39
DABEN REALTY CO., INC., Appellant,
v.
Noelene STEWART, Appellee.
No. 1171A230.
Court of Appeals of Indiana, Second District.
Dec. 29, 1972.

[155 Ind.App. 40] H. William Irwin and Richard L. Fairchild, Indianapolis, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, of counsel, for appellant.

Frank W. Morton, of Morton, Tumbove & Rogers, Indianapolis, for appellee.

WHITE, Judge.

Mrs. Stewart, plaintiff-appellee, fell down in the lobby of an office building owned and maintained by Daben Realty

Page 810

Co., Inc. (Daben). A jury awarded her $47,000.00 for her injuries. Daben appeals, contending (1) the evidence of negligence is insufficient, and (2) that it was error to exclude the proffered testimony of an expert concerning the results of co-efficient-of-friction tests he had made. We affirm.

The evidence and reasonable inferences most favorable to the injured plaintiff-appellee establish the following facts:

On the date of the accident, July 23, 1965, defendant-appellant Daben's entire office building was under lease to the United States Department of Agriculture, or more particularly the Federal Crop Insurance Corporation of which Mrs. Stewart was an employee. Her place of work was Room 105 of the leased building at 311 West Washington Street, [155 Ind.App. 41] Indianapolis. Room 105 was on the ground floor and opened directly into the lobby. There was a door between the lobby and the said office room but no threshold or similar structural feature separated the lobby floor from the office floor. Both floors were covered with square asphalt tile of undisclosed size. The lobby floor was waxed and polished to a high sheen. The floor just inside the doorway of Room 105 was dirty, spotty, gritty and sticky. It was cleaned and waxed much less often than the lobby floor.

On the day of the accident Mrs. Stewart was 59 years of age, had no physical deformities and was in good health. She was wearing two year old sandal type shoes with one and one-quarter inch shaped heels (bigger at the top and tapered at the bottom). Her fall occurred at approximately 4:30 P.M. as she was leaving work carrying mail (6--8 envelopes), her purse, sunglasses and a pair of shoes in a sack. She described her fall thusly:

'I stepped out from our part of the office, and I don't think I ever took that second step even. The first step and both feet were out and I fell on my hip.'

It was stipulated that Daben, pursuant to the provisions of the lease, was obligated to maintain all the floors throughout the buildings.

Plaintiff and defendant have quite properly agreed that Daben owed plaintiff the duty to exercise ordinary care to keep the building and its means of egress and ingress in a reasonably safe condition. Great Atlantic and Pacific Tea Company v. Custin (1938), 214 Ind. 54, 59, 13 N.E.2d 542, 544; Verplank v. Commercial Bank of Crown Point (1969), 145 Ind.App. 324, 334, 251 N.E.2d 52, 58, 18 Ind.Dec. 495, 504. They also correctly agree that the proper waxing of a floor is neither negligence per se nor evidence of negligence. Stephens v. Sears Roebuck & Co. (CA 7, 1954), 212 F.2d 260; Bonawitt v. Sisters of Charity of Saint [155 Ind.App. 42] Vincent's Hospital (1932),43 Ohio App. 347, 349, 182 N.E. 661, 662.

The only evidence that the lobby itself was improperly waxed is its description by plaintiff's witnesses as being shiny, slick, highly polished, and expressions to that general effect. Were we persuaded by defendant's contention that only the lobby floor's condition is an issue in this case we would be inclined to...

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18 practice notes
  • Board of Com'rs of Howard County v. Kokomo City Plan Commission, No. 2-473A88
    • United States
    • Indiana Court of Appeals of Indiana
    • May 20, 1974
    ...(1973) Ind.App., 302 N.E.2d 544; Weingart v. State, (1973) Ind.App., 301 N.E.2d 222; Daben Realty Co. v. Stewart, (1972) Ind.App., 290 N.E.2d 809; Matthew v. State, (1972) Ind.App., 289 N.E.2d 336; Ostric v. St. Mary's College, (1972) Ind.App., 288 N.E.2d As Justice Hunter succinctly stated......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...(1973), 158 Ind.App. 223, 302 N.E.2d 544; Farley v. Farley (1973), 157 Ind.App. 385, 300 N.E.2d 375; Daben Realty Co. v. Stewart (1972), 155 Ind.App. 39, 290 N.E.2d 809; Matthew v. State (1972), 154 Ind.App. 182, 289 N.E.2d 336; Ostric v. St. Mary's College (1972), 153 Ind.App. 616, 288 N.E......
  • Ingmire v. Butts, No. 2--1172A111
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 1975
    ...(1973), Ind.App., 301 N.E.2d 222; State v. Hladik (1973), Ind.App., 302 N.E.2d 544; Daben Realty Co., Inc. v. Stewart (1972), Ind.App., 290 N.E.2d 809; Ind. Dept. of State Revenue v. Frank Purcell Walnut Lumber Co., Inc. (1972), Ind.App., 282 N.E.2d 336; Farley v. Farley (1973), Ind.App., 3......
  • Parr v. McDade, No. 2--1072A87
    • United States
    • Indiana Court of Appeals of Indiana
    • July 31, 1974
    ...verbatim, or in substance, the question, the objection and the ruling as we held in Daben Realty Co., Inc. v. Stewart (1972), Ind.App., 290 N.E.2d 809, 812, 34 Ind.Dec. 505, 509, was required by Trial Rule 59(B) to present the ruling for appellate 11 'It is difficult, if not impossible, to ......
  • Request a trial to view additional results
18 cases
  • Board of Com'rs of Howard County v. Kokomo City Plan Commission, No. 2-473A88
    • United States
    • Indiana Court of Appeals of Indiana
    • May 20, 1974
    ...(1973) Ind.App., 302 N.E.2d 544; Weingart v. State, (1973) Ind.App., 301 N.E.2d 222; Daben Realty Co. v. Stewart, (1972) Ind.App., 290 N.E.2d 809; Matthew v. State, (1972) Ind.App., 289 N.E.2d 336; Ostric v. St. Mary's College, (1972) Ind.App., 288 N.E.2d As Justice Hunter succinctly stated......
  • Lugar v. State ex rel. Lee, No. 2-675A145
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1978
    ...(1973), 158 Ind.App. 223, 302 N.E.2d 544; Farley v. Farley (1973), 157 Ind.App. 385, 300 N.E.2d 375; Daben Realty Co. v. Stewart (1972), 155 Ind.App. 39, 290 N.E.2d 809; Matthew v. State (1972), 154 Ind.App. 182, 289 N.E.2d 336; Ostric v. St. Mary's College (1972), 153 Ind.App. 616, 288 N.E......
  • Ingmire v. Butts, No. 2--1172A111
    • United States
    • Indiana Court of Appeals of Indiana
    • September 25, 1975
    ...(1973), Ind.App., 301 N.E.2d 222; State v. Hladik (1973), Ind.App., 302 N.E.2d 544; Daben Realty Co., Inc. v. Stewart (1972), Ind.App., 290 N.E.2d 809; Ind. Dept. of State Revenue v. Frank Purcell Walnut Lumber Co., Inc. (1972), Ind.App., 282 N.E.2d 336; Farley v. Farley (1973), Ind.App., 3......
  • Parr v. McDade, No. 2--1072A87
    • United States
    • Indiana Court of Appeals of Indiana
    • July 31, 1974
    ...verbatim, or in substance, the question, the objection and the ruling as we held in Daben Realty Co., Inc. v. Stewart (1972), Ind.App., 290 N.E.2d 809, 812, 34 Ind.Dec. 505, 509, was required by Trial Rule 59(B) to present the ruling for appellate 11 'It is difficult, if not impossible, to ......
  • Request a trial to view additional results

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