Dooley v. Econ. Store, Inc.

• Decision Date: 05 October 1937
• Docket Number: No. 1022.,1022.
• Citation: 194 A. 375
• Parties: DOOLEY v. ECONOMY STORE, Inc.
• Court: Vermont Supreme Court

194 A. 375

DOOLEY

v. ECONOMY STORE, Inc.

No. 1022.

Supreme Court of Vermont. Rutland.

Oct. 5, 1937.

Exceptions from Rutland County Court; John S. Buttles, Judge.

Action by Carrie Dooley against Economy Store, Inc. Verdict and judgment for plaintiff, and defendant brings exceptions.

Reversed and judgment directed for defendant.

Argued before POWERS, C. J., SLACK, MOULTON, and SHERBURNE, JJ., and SHIELDS, Superior Judge.

Novak & Bloomer, of Rutland, for plaintiff. Lawrence & O'Brien, of Rutland, for defendant.

SLACK, Justin.

Plaintiff seeks to recover for injuries that she received from a fall in defendant's store. She had a verdict and judgment below, and the case is here on defendant's exceptions.

Defendant's store is divided into various departments among which are the suit and the millinery departments. These are located on the second floor and are connected by an archway eight to ten feet wide. The floor of the suit department is two to three feet higher than the floor of the millinery department, and there are two stairs leading from the former to the latter that extend across the entire archway. The tread of the stairs was covered with rubber or linoleum and had a copper or brass binder an inch or an inch and one-half wide at the outer edge, held in place by small tacks or nails. There was no railing in the center or at either end of the stairs.

The suit is predicated upon the alleged negligence of defendant in failing to keep these stairs and the approaches thereto smooth and in a proper and reasonable state of repair, in failing to keep the carpet on the stairs and approaches thereto smoothly and safely laid and fastened, and in failing to maintain a guardrail either in the center of the stairway or at each side thereof.

At the close of all the evidence defendant moved for a directed verdict on the grounds that the evidence did not tend to show that it was negligent in any of tin-respects alleged; that its negligence as alleged was a proximate cause of the accident; that the slipping testified to by plaintiff was due to its negligence; that a negligent condition at the point of the accident was a proximate cause thereof; that plaintiff was free from contributory negligence, or non-assumption by plaintiff of such risk as arose from the conditions shown. The motion was overruled subject to defendant's exception.

In considering the question raised by this exception the evidence must be viewed in the light most favorable to the plaintiff. It showed the relative location of the suit and millinery departments and the construction of the passageway between them as above stated, and that plaintiff fell on the stairs leading from the former to the latter department.

The sole question about which there was a conflict in the evidence was whether plaintiff's fall was due to her carelessness or to defendant's negligence as alleged in the declaration. The only evidence tending to support her claim about this was her own testimony. She testified, in effect, that she started down the stairs between the two departments, slipped on the top stair, and, because the metallic binder thereon was rough, caught her heel on it, and, there being no railing to get hold of to prevent her falling, "away I went." Although her testimony respecting this gives the impression that it was based on surmise and conjecture rather than on actual knowledge, it cannot be ignored. It stands somewhat like unreasonable, inconsistent, or contradictory testimony given by a witness, which, unless impossible, must be considered. Robey v. Boston & Maine Railroad, 91 Vt. 386, 100 A. 925; Shields v. Vt. Mut. Fire. Ins. Co., 102 Vt. 224, 237, 147 A. 352; Bates v. Rutland Railroad Co., 105 Vt. 394, 165 A. 923; Perkins v. Vermont Hydro-electric Corp., 106 Vt. 367, 399, 177 A. 631; Potter v. Crawford, 106 Vt. 517, 175 A. 229; Steele v. Lackey, 107 Vt. 192, 198, 177 A. 309. The evidence bearing on this question presented an issue of fact, but it by no means follows that defendant's motion was properly denied.

That the lack of a railing, standing alone, did not constitute actionable negligence, is clear, since the owner of premises is not liable to one who goes thereon as invitee for injuries resulting from a danger that was obvious to the latter or should have been observed by him in the exercise of ordinary care. Cole v. L. D. Willcutt & Sons Co., 218 Mass. 71, 105 N.E. 461; Shaw v. Ogden, 214 Mass. 475, 102 N.E. 61; Shanley v. American Olive Co., 185 Cal. 552, 197 P. 793; Weber v. City Water Co., etc., 206 Ill. App. 417; Calvert v. Springfield Light & Power Co., 231 Ill. 290, 83 N.E. 184, 14 L.R.A.(N.S.) 782, 12 Ann.Cas. 423; Clark v. City of Huntington, 74 Ind.App. 437, 127 N.E. 301, 128 N.E. 453; Carleton v. Franconia I. & S. Co., 99 Mass. 216; Lindsley v. Stern, 203 App.Div. 615, 197 N.Y.S....