F. W. Woolworth Co. v. Peet, 17532
| Decision Date | 06 June 1955 |
| Docket Number | No. 17532,17532 |
| Parties | F. W. WOOLWORTH COMPANY, a New York Corporation, Plaintiff in Error, v. Edna H. PEET, Defendant In Error. |
| Court | Colorado Supreme Court |
Wood & Ris, Denver, for plaintiff in error.
Ivor O. Wingren, Henry Lutz, Charles A. Murdock, Denver, for defendant in error.
Before ALTER, C. J., and HOLLAND, CLARK, LINDSLEY, BRADFIELD and KNAUSS, JJ.
This malodorous case should have ended at the close of plaintiff's evidence, because plaintiff wholly failed to meet the burden of proof to sustain the allegations of her complaint.
Defendant in Error, as plaintiff, filed her complaint on April 20, 1953 seeking damages for personal injuries sustained by her on March 17, 1953 at the F. W. Woolworth Company store in Denver, Colorado. She alleged that while, as a customer, she was shopping in defendant's store, she fell as the result of an unsafe and dangerous condition in which the floor was negligently kept and maintained; and particularly, that an unsafe condition was caused by defendant permitting human or animal excrement to remain on the floor in one of the aisles of the store after knowledge of the fact that the condition existed.
Defendant answered, admitting the incident as alleged by plaintiff, denied that it was negligent; denied that plaintiff was damaged in the amount prayed for; and as a further defense, alleged that plaintiff's injuries, if any, were caused by her own negligence. After a trial to a jury in May of 1954, a verdict in plaintiff's favor and assessing damages in the amount of $1,300.00 was returned. Motions for judgment notwithstanding the verdict and for a new trial were filed and overruled, and error is assigned to the judgment based thereon.
Plaintiff in error presents a fair and sufficient statement of the case by relating only the facts material to a decision of the case in accordance with Rule 115(a) R.C.P.Colo. The writ of error involves only one issue, namely, whether or not plaintiff's evidence relating to the negligence of defendant was sufficient to authorize the submission of the case to a jury. Plaintiff's counsel state that the statement of the case in the opening brief was not complete and set forth a supplementary statement which is a summary of the evidence relating to her injuries and damage. This phase of the case is not here presented or urged by plaintiff in ereor.
The testimony of plaintiff was to the effect that she entered defendant's store at about 5 o'clock p. m., or near closing time, to purchase a pocket comb; that she went down the aisle toward the counter on which was the article she wanted to purchase; that she was looking at the counter, was not watching the floor, and stepped on something, slipped and fell; that the assistant manager came to her immediately and told her not to try to get up; and she says the manager asked the clerks at the counter why they did not have someone standing there; that the clerk replied she did not know anything about it; and another clerk said someone had gone to get the porter; that after she fell plaintiff discovered she had fallen in some excrement, but did not know whether it was animal of human; and that she then was sent to a hospital in an ambulance. On cross-examination plaintiff further stated that she had not observed the floor at any time after entering the store and did not see the excrement on the floor prior to the time she fell; that she did not know how long it had been there or how it happened to be on the floor; and that she did not know, before she fell, whether any of the employees of the store knew that it was there.
Plaintiff called as a witness in her behalf, Ethel Nidey, one of defendant's floor supervisors, who testified that she was on the floor; had been at the point where the accident happened five minutes before; that she saw nothing on the floor; and when there, had inspected the floor, because she was attending to a display of combs at the counter; and she further stated that if the matter had been there, she would have fallen herself. The excrement was about one foot away from the counter, and the witness was able to cover it with a small piece of paper. She further testified that she had not seen any dogs in the store on that day, and that dogs were not permitted in the store.
This, in substance, was plaintiff's case as made by herself and one witness, and on resting her case, counsel for defendant corporation moved for a directed verdict on the ground that plaintiff had failed to offer any evidence to establish negligence on the part of defendant; which motion was denied by the court. Then followed defendant's evidence.
The first witness for defendant, Harvey, a porter at the store, testified that he was working in the store on that day; that he had received a call to clean up a mess in which a lady had fallen; that he had been over the exact area a few minutes before receiving the call and had not noticed anything on the floor; and that on getting the call, he...
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... ... W. Woolworth Co. v. Stokes, Miss., 191 So.2d 411, 416 (1966), as follows: ... " * * * when plaintiff has shown ... Such was the case under the facts of Woolworth v. Peet, 132 Colo ... Page 553 ... 11, 284 P.2d 659 (1955), and Denver Dry Goods v. Pender, 128 Colo ... ...
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...has a duty to his customers to use ordinary care to keep the floors used by them in a reasonably safe condition. F.W. Woolworth Co. v. Peet, 132 Colo. 11, 284 P.2d 659 (1955). 1 Unless a dangerous condition is created by the operator or its agents, 2 its duty of care is breached only if, af......
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...accumulation, to have removed it before this accident occurred.' (Italics ours.) The language used by this court in F. W. Woolworth Co. v. Peet, Colo., 284 P.2d 659, 661, is equally applicable in the instant case. 'About all that plaintiffs seemed to have to rely upon was the happening of t......
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THE COLORADO APPELLATE RULES
...App. 2011). Sufficient statement of the case is presented by relating only the facts material to a decision. F. W. Woolworth Co. v. Peet, 132 Colo. 11, 284 P.2d 659 (1955). This rule requires a statement in the brief of the facts material to a decision of the case. Lowe v. United States Fid......
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Rule 28 BRIEFS.
...App. 2011). Sufficient statement of the case is presented by relating only the facts material to a decision. F. W. Woolworth Co. v. Peet, 132 Colo. 11, 284 P.2d 659 (1955). This rule requires a statement in the brief of the facts material to a decision of the case. Lowe v. United States Fid......