Dudley v. Montgomery Ward & Co., Inc.

• Decision Date: 20 April 1948
• Docket Number: 2388
• Citation: 192 P.2d 617,64 Wyo. 357
• Parties: MARIE K. DUDLEY, Plaintiff and Respondent, v. MONTGOMERY WARD & CO., Incorporated, a corporation, Defendant and Appellant
• Court: Wyoming Supreme Court

192 P.2d 617

64 Wyo. 357

MARIE K. DUDLEY, Plaintiff and Respondent, v. MONTGOMERY WARD & CO., Incorporated, a corporation, Defendant and Appellant

No. 2388

Supreme Court of Wyoming

April 20, 1948

APPEAL from District Court, Laramie County; SAM M. THOMPSON, Judge.

Action by Marie K. Dudley against Montgomery Ward & Company, Inc. for personal injuries sustained in a fall on the floor of defendant's store. Judgment for plaintiff, and defendant appeals.

Reversed.

For plaintiff and respondent the cause was submitted on the brief of Kline and Kline and oral argument by Mr. Arthur Kline of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

Plaintiff having alleged specific acts of negligence to have caused her injury must prove that defendant negligently and carelessly placed on its floor and permitted to remain there a large quantity of oil which caused the plaintiff's injury. S. H. Krese & Co. v. Jennings (C. C. A. Tex. 1933) 64 S.W. (2nd) 1074, 1075; Hines v. Jasko (C. C. A.) 266 F. 336; Covoretto v. Alaska Casteneau Mining Co. (C C. A.) 245 F. 853; Great Atlantic & Pacific Tea Co. v Logan (C. C. A. Texas 1930) 33 S.W. 2nd. 470.

Plaintiff may not recover if she was contributorily negligent in failing to use ordinary care. DeHonuy v. Harding (U.S.C. C. A. N. D. 1924) 300 F. 696; Kelley v Hines (Ga. 1920) 25 Ga.App. 186, 102 S.E. 921; Johnson v. Washington Route (Wash. 1922) 121 Wash. 608, 209 P. 1100; Murray v. Bedell Co. (1931) 256 Ill.App. 247; Harsha v. Renfro Drug Co. (1934; Tex. Civ. App.) 775 S.W. 2nd. 584; Pieman v. Higbee Co. (1935) 54 Ohio App. 55, 6 N.E. 2d. 21.

Plaintiff having observed damp condition of floor and walked thereon with full knowledge of that condition assumed the risk and cannot recover. Cornwell v. S. S. Kresge Co. (W. Va. 1932) 164 S.E. 157; Batsen v. Western Union Telegraph Co. (C. C. A. 5th 1935) 75 F. 2d. 154.

Plaintiff may not recover if fall was occasioned by a slippery condition produced by snow and water being carried into entrance from outside, since there is no evidence to show negligence of defendant and it affirmatively appears that defendant took reasonable care to reduce such hazard. McCauley v. United States Cigar Stores Co. (1923) 204 A.D. 356, 198 N.Y.S. 154; Kern v. Great Atlantic & Pacific Tea Co. 244 N.Y.S. 402, 209 A.D. 133, judgment modified 150 N.E. 572, 241 N.Y. 600; Bridgford v. Stewart Dry Goods Co. 191 Ky. 557, 231 S.W. 22; Bodine v. Goerke Co. (N. J. 1926) 133 A. 295; Halle Bros. Co. v. Rails (1924) 19 Ohio App. 427; S. S. Kresge Co. v. Fader (1927), 116 Ohio St. 718, 158 N.E. 174; Bell v. Great Atlantic & Pacific Tea Co. (1927) 288 Pa. 160, 135 A. 607.

It is necessary that plaintiff prove either that defendant had actual knowledge of the dangerous condition or that such condition existed for such a length of time that the defendant, in the exercise of reasonable care, should have known of its presence and removed it. 45 C. J. 837; Livingston v. Friend Bros., Inc. (Mass. 1939) 29 N.E. 2d. 193; Filipowicz v. S. S. Kresge Co. (Mich. 1937) 274 N.W. 721; Bronstein v. R. R. White Co., 259 Mass. 34, 155 N.E. 661; John Thompson Grocery Co. v. Phillips (1912) 22 Colo.App. 428, 125 P. 563; Shaw v. Goldman (1906) 116 Mo.App. 332, 92 S.W. 165; Rankin v. S. S. Kresge Co. (D. C. W. Va.) 59 F.Supp. 613.

There can be no inference of negligence from the fact the floor had been oiled. It is not negligence to have an oiled floor and the doctrine of res ipsa loquitur does not apply. Plaintiff, to recover because of slipping on oiled floor, must prove that the substance used thereon was improper, or that the floor was oiled with a proper substance in an improper manner. Spickernagle v. Woolworth (1912) 236 Pa. 496, 84 A. 909; Kepp v. F. W. Woolworth & Co. (1912) 150 A.D. 283, 134 N.Y.S. 646; Dimarco v. Cupp Grocery Co. (1926) 88 Pa.Super. Ct. 449; MacDonald v. F. W. Grand (1927) 89 Pa.Super. Ct. 526; Torbert v. F. W. Woolworth Co. 238 N.W. 140; F. W. Woolworth Co. v. Williams (C. C. A. D. C. 1930) 41 F. 2d. 970.

For defendant and appellant the cause was submitted on the brief of Henderson and Thomson and oral argument by Mr. Harry B. Henderson and Mr. E. Keith Thomson of Cheyenne, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

It is the law that defendant is not to be held as an insurer and that its negligence as charged cannot result from any presumption arising from the mere fact that plaintiff slipped and fell on the floor. But the proprietor of a store or similar place of business owes to his patrons the duty to use ordinary care to see that the place to which he has invited them is reasonably safe for use for the purposes for which it was designed and for which customers are invited there. Phelps v. Montgomery Ward & Co., 107 S.W. 2d. 939.

Where the slippery condition of the floor is caused by oiling or washing done by defendant, then knowledge of the slippery condition is imputed to defendant, since the jury may properly infer that the condition resulted from the defendant's own act. It was not absolutely necessary for plaintiff to testify that she saw oil on the floor where she slipped. The fact that the witness testified that it felt like oil is no reason for rejecting her statement of the fact that it was oil upon which she slipped. Rundlett v. Director, (Ore.) 47 P.2d 848.

Where a floor in a store was shown to have been freshly or heavily oiled and to have been very slick when a woman who wore low-heeled shoes and while walking in an ordinary manner slipped and fell on the floor, making marks thereon three-fourths of an inch wide and from eighteen inches to two feet in length, and struck the floor not only with her shoulders, but also with her head, it was not error to overrule a demurrer to her evidence because she had not shown in what particular details the storekeeper or its general manager had failed to exercise due care in oiling the floor. Walker v. S. H. Kress & Co., (Kan.) 75 P. 2d. 820.

In an action by a customer against a storekeeper for injuries sustained in a fall on the floor of the store, evidence that the defendant oiled the floor 36 hours before the injury; that the floor where plaintiff fell was oily and slick; that the customer while walking in an ordinary manner slipped and fell and there were marks on the floor where it could be seen that the customer's heels had slipped in the oil, the evidence was sufficient to present the issue of negligence of defendant to the Jury. Safeway Stores v. Whitehead, (Okla.) 125 P. 2nd. 194.

It was not necessary for plaintiff to prove defendant had actual or constructive knowledge of the hazardous condition of its floor, as the alleged negligence was the act of defendant in creating this condition. Defendant could not by its own act create a hazardous condition and then demand that plaintiff, who was injured as a result thereof, prove it had knowledge of that condition. Knowledge of the alleged hazardous condition created by the defendant itself is inferred. Hulett v. Great Atlantic & Pacific Tea Co., (Mich.) 299 N.W. 807.

Contributory negligence becomes a question of law only when reasonable men can draw but the one inference which points unerringly to such negligence. Ries v. Cheyenne Cab & Transfer Co., 53 Wyo. 104, 79 P. 2d. 468; Merback v. Blanchard, 56 Wyo. 152, 105 P. 2d. 272.

Where plaintiff was rightfully in the defendant's store by its invitation it owed her the duty to maintain the premises in a reasonably safe condition for her use in accordance with the invitation. She could properly assume that the floor was safe for her to walk upon. The fact that she did not observe its condition before she fell is not conclusive against her right recover. Judson v. American Railway Express Co., (Mass.) 136 N.E. 103.

A customer in a store may assume that the floor will be free from obstructions of a dangerous nature and from a slippery spot, although he may not walk blindly irrespective of obvious danger. If, in fact, he sustains a fall, the question should be submitted to the jury whether under the circumstances he was paying reasonable attention to the danger which might exist upon the floor; that is, whether he was exercising ordinary care for his own safety. Lyle v. Megerle, (Ky.) 109 S.W. 2nd. 598; Brown v. Stevens, (Mich.) 99 N.W. 12; Burton v. Abbott Tinning & Roofing Co. (Ore.) 252 P. 973; Bickley v. Sears, Roebuck & Co., (Ohio) 23 N.E. 2d. 505; Driscoll v. Wallace Mercantile Co., (Minn.) 266 N.W. 879; Tuttle v. Crawford, (Cal.) 63 P. 2nd. 1128.

It is the general rule that an appellate court will not review alleged errors in the giving or refusal of instructions unless the record affirmatively shows that it contains all the instructions given or refused. Hart, et al. v. Williams, (Ind.) 133 N.E. 885; Howat v. Opas, (Ill.) 42 N.E. 2nd. 867; Railway Co. v. Kasper, (Ind.) 123 N.E. 360; State v. Winstandley, (Ind.) 51 N.E. 1054; Bougher v. Strauss Bros. Co. (Ind.) 166 N.E. 250.

RINER, Chief Justice. KIMBALL, J., and BLUME, C., concur.

OPINION

RINER, Chief Justice.

This was an action brought in the district court of Laramie County by Marie K. Dudley, plaintiff and respondent against Montgomery Ward and Co., Inc., defendant and appellant, to recover damages for personal injuries which she asserts were sustained when she fell on the floor of defendant's store. The case was tried by the court with a jury in attendance. There was a verdict for the plaintiff upon which judgment was duly entered. Defendant's motions for a directed verdict at the close of plaintiff's case and also at the conclusion of all the evidence in the case, were overruled as was also its motion n. o. v. The proceeding before us is one by direct appeal. The parties will be usually referred to as they were designated in the district...