F.W. Woolworth Co. v. Brown

• Decision Date: 19 February 1935
• Citation: 79 S.W.2d 362,258 Ky. 29
• Parties: F. W. WOOLWORTH CO. v. BROWN.
• Court: Kentucky Court of Appeals

79 S.W.2d 362

258 Ky. 29

F. W. WOOLWORTH CO. v. BROWN.

Court of Appeals of Kentucky

February 19, 1935

Appeal from Circuit Court, Kenton County, Criminal, Common Law and Equity Division.

Action by Tillie Brown against the F. W. Woolworth Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Mackoy & Mackoy, of Cincinnati, Ohio, for appellant.

Northcutt & Northcutt and E. R. Rivard, all of Covington, for appellee.

RATLIFF Justice.

The appellee, Tillie Brown, brought this suit in the Kenton circuit court to recover damages for personal injury received by her by falling on the floor in appellant's store.

She alleged in her petition, in substance, that on the 19th day of October, 1933, she entered defendant's store for the purpose of making a purchase of merchandise. Upon entering the store, she proceeded to a counter on which soap is kept for sale, and, as she reached the counter or a point near the counter, her foot slipped on some wet or oily substance which by and through the carelessness and negligence of the defendant was permitted to remain on the floor of the store the presence of which was known to defendant or by the exercise of ordinary care could have been known, causing her to fall with great force and violence to the floor. She described the nature and extent of her injuries as a result of the fall, and prayed judgment for the sum of $5,000. However, later by amended petition she modified the prayer of her original petition and asked that she recover the sum of $3,000.

Appellant defendant below, filed its answer, in which it denied the material allegations of plaintiff's petition, and pleaded contributory negligence. A trial was had, and resulted in a jury verdict and judgment thereon for the sum of $1,000 for appellee.

Appellant filed motion and grounds for a new trial, consisting of a number of alleged grounds for reversal, but only a part of which is insisted upon in brief for appellant, to wit, (1) the evidence is insufficient to support the verdict; and (2) the trial court erred in overruling appellant's motion for a peremptory instruction.

The pertinent part of appellee's testimony with respect to her fall was, in substance, as follows:

"Q. Now please tell the jury and the court, if you can, just what occurred. Describe the accident. A. Well, I entered the store around four o'clock to make a purchase. I was going to the soap counter and just as I was right to it, almost to it, my foot slipped and I fell very hard on the floor, and of course, when I got up.

"Q. Now, you say you fell to the floor. Did you get up or someone assist you? A. Well, two men came to my assistance and helped me.

"Q. Now, as to the condition of that floor, you know what your foot slipped on? A. Well, of course, I couldn't just say. It seems that I felt like it was an oily substance as my foot slipped. ***

"Q. Did you see the floor at the time you fell? A. No, sir. I didn't.

"Q. I don't mean by that, did you see it,--I mean, did you examine the floor? A. No, I didn't examine it."

On cross-examination appellee testified as follows:

"Q. Mrs. Brown, you say you didn't see any oil there when you fell? A. No, I didn't. ***

"Q. Well, did you notice at any point along the fifteen feet that you walked that day that the floor was at all slippery? A. No.

"Q. The only slippery point you say you detected was where you fell? A. Yes, sir. ***

"Q. Are you able to describe the nature of the spot on your stocking? A. Well, it was dark looking and more like a floor wax. I would judge something like that.

"Q. It wasn't oil then? A. Well, I couldn't say what it was, but it was more than dirt." John E. Goodpaster testified that he was in the store at the time of the accident and had passed over the floor at about the same place; that he did not notice the floor at the place where appellee fell until after she had fallen. He was asked to describe the condition of the floor, and he said:

"A. Well, the floor, at least in my judgment, had been oiled and of course, there was evidence on the floor of it having been oiled.

"Q. What was on the floor? A. Oil, floor oil."

He said that, as he was walking toward the sandwich counter, he heard the "commotion" of some one falling, and looked around and she was lying there in front of the soap counter, and some ladies were helping her up. He said he heard some one in the crowd speak of the floor being in an oily condition and as being dangerous. Appellant's counsel objected to the witness testifying to the remarks made by bystanders, and the court said: "Overruled for the time being until it is ascertained that it is an incorrect question and the court will instruct the jury not to consider it." Exceptions were taken to the court's ruling, but the record does not disclose that the court made further ruling on the objections nor that counsel made further insistence on a ruling. Goodpaster said that, after appellee had fallen, he noticed the presence of oil on the floor where the floor had been oiled with ordinary floor oil.

Blaine Shepherd testified that he was in the store on October 18th, the day previous to the time of appellee's accident, and, while he was walking down the aisle past the soap counter, his foot slipped, and he almost fell and wrenched his back in striving to stay on his feet, and hurt his back considerably. Counsel for appellant moved to strike the answer, and the court ruled: "The testimony as to the condition of the floor may remain in, but sustained as to the injury to the witness." Defendant excepted to the ruling of the court. There was considerable testimony tending to show that the floor indicated it had been oiled some time previous to the appellee's accident, and along the aisles where the public walked frequently it appeared that the oil was worn off to some extent, but there was presence of more oil near the edge of the counters. In view of this testimony, we think Shepherd's testimony with respect to the slippery condition of the floor the day previous was competent. But the court properly sustained objections to the witness' testimony with respect to his injury. The witness said he did not very closely notice the condition of the floor and could not say just what it was he stepped on, but that it was "some kind of smear masked on the floor." He later described it as indicating candy, soap, or banana peel, but he did not say that it was not oil. He said when he slipped he had some difficulty in keeping from falling, and it attracted the attention of the people, and he was embarrassed and hurried out of the store without giving any particular attention to the condition of the floor, and did not attempt to ascertain just what caused him to slip.

The above is, in substance, the testimony produced for plaintiff.

The store manager for appellant and other employees of the store including the janitor who cared for the floor, all testified that there was no oil on the floor, and that it was not the custom or habit of appellant to oil the...