F.W. Woolworth Co. v. Moore
| Decision Date | 12 May 1943 |
| Docket Number | 27868. |
| Citation | 48 N.E.2d 644,221 Ind. 490 |
| Parties | F. W. WOOLWORTH CO. v. MOORE. |
| Court | Indiana Supreme Court |
Appeal from Washington Circuit Court; Emmett C Mitchell, judge.
Jonas G. Howard and Ellis Deibel, both of Jeffersonville, for appellant.
Robert R. Kelso, of New Albany, for appellee.
This is an action for damages brought by appellee for personal injuries alleged to have been caused by the negligence of the appellant in permitting a metal strip, embedded in the tread of one step of a stairway leading to appellant's restaurant, to extend above the surface of the tread.
The first paragraph of the complaint, on which the action was tried, alleged that the appellant was in the possession and control of a building in which it operated a retail store and restaurant; that the restaurant, which was located on the second floor of said building, was reached by an inside stairway which the public was invited to use for the purpose of going to and from said restaurant; that the appellant carelessly, negligently and improperly suffered and permitted the stairway to become and remain out of repair and dangerous in that a metal strip on the step next to the top of the flight of stairs was 'loose, bent and not properly affixed to said step' and 'extended above the level of the tread of said step'; that the appellee visited said restaurant as a customer of said appellant and while descending said stairway and while proceeding with due care and caution, she caught her heel on said metal strip tripped and fell down the flight of stairs thereby sustaining the injuries complained of.
The only error assigned and not waived was the action of the court in overruling the motion for a new trial; and under this assignment the only question presented challenges the sufficiency of the evidence.
We may consider only the evidence tending to support appellee's claim. On the question of the metal strip extending up above the surface of the step, Emma Stone, who witnessed the accident, testified that she looked down and saw that the metal strip was 'raised just enough to catch your foot', a quarter of an inch or so; and that as appellee stepped on that step she tripped and fell. Grace Poe, also a witness of the accident, testified that as the appellee stepped on the second step 'she fell forward'. The appellee said that she remembered nothing after stepping on the step in question but that an examination after the accident revealed that a quarter of an inch of the heel cap had been torn from her shoe. The manager of the appellant's store said that no change was made in the stairway after the accident. Margaret Endris testified that she fell on this same step of said stairway several weeks after appellee's accident; that when she the witness, fell, There can be no serious question as to the sufficiency of this evidence to sustain a finding that the metal strip on this step was in such a defective condition as to constitute a danger to appellant's customers using the stairway.
The appellant insists, however, that there was no evidence to sustain a finding that it had either express or implied knowledge of the defect prior to the accident.
While the appellant in operating its store was not an insurer of the safety of its customers, its customers were invitees and the appellant owed them the duty to keep its premises including this stairway, in a reasonably safe condition for their use. Great Atlantic & Pacific Tea Co. v. Custin, 1938, 214 Ind. 34, 13 N.E.2d 542, 14 N.E.2d 538; Hillis v. Sears, Roebuck & Co., 1933, 284 Mass. 320, 187 N.E. 558. Appellant's duty was not fulfilled by having the stairway properly constructed in the first place. The stairway was under constant use by the customers of the store. The appellant's manager testified that at least four thousand persons per week patronized the restaurant to which this...
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