Farley v. Portland Gas & Coke Co.

• Decision Date: 02 March 1955
• Citation: 280 P.2d 384,203 Or. 635
• Parties: Mary FARLEY, Respondent, v. PORTLAND GAS & COKE COMPANY, Appellant.
• Court: Oregon Supreme Court

Page 384

280 P.2d 384

203 Or. 635

Mary FARLEY, Respondent, v. PORTLAND GAS & COKE COMPANY, Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Oct. 20, 1954.

Decided March 2, 1955.

Henry S. Gray and Gerald J. Norville, Portland, argued the cause for appellant. On the brief were Laing Gray & Smith, Portland.

Stewart Whipple, Portland, argued the cause for respondent. With him on the brief were Easley, Whipple & McCormick and Carl Robert Wells, Portland, by Carl Robert Wells, Portland.

Before LATOURETTE ^*, C. J., and WARNER ^**, ROSSMAN and BRAND, JJ.

BRAND, Justice.

In her complaint the plaintiff alleges that she went to the office and showroom of the defendant, a corporation, in Portland, Oregon, to pay her gas bill, and after so doing, she proceeded toward an exhibit of new equipment just to the west of the Salmon Street entrance to said building, 'when she tripped over and fell upon a low platform upon which said equipment was resting.' She alleges that the defendant was negligent in placing a low platform on the floor, thereby causing a hazardous condition to exist, and in failing to warn the plaintiff of said hazardous condition and in failing to place a barrier around said platform. She alleges that as a proximate result of the defendant's negligence, she was hurled to the floor and thereby caused to sustain serious injury, the nature of which is set forth in the complaint. She then asks for damages. To this complaint the defendant filed an answer, which is in substance a general denial of all allegations of negligence, but the defendant admits that the plaintiff fell 'partly upon and over a low platform in said showroom upon which an exhibit of equipment was resting. * * *' Defendant also admits that the plaintiff suffered a fractured wrist and was hospitalized.

As an affirmative answer the defendant alleges that it had installed a display of kitchen equipment and appliances westerly of and near the Salmon Street entrance to its showroom. It is alleged that the display was mounted on a platform or floor, the top surface of which was raised to a height of approximately three inches above the regular floor level; that platform was edged with a metallic strip which clearly marked the edge thereof and which set said platform distinctly apart from the main floor level on which it was placed. It is further alleged that said display, including the platform, was at all times clearly and adequately lighted and said metallic strip on the edge of the platform was clearly discernible by and visible to all persons who approached or neared said platform to view said display. It is then alleged that if in truth and fact the plaintiff tripped over said platform, as alleged in her complaint, she was not at said time and place exercising due and reasonable care for her own safety and was negligent in the following respects, to-wit: (1) That she failed to notice where she was walking; (2) that she failed to observe the physical layout of said exhibit; (3) that she failed to exercise a reasonable and proper lookout at said time and place, and (4) that she failed to exercise reasonable care or any care for her own safety. It is alleged that the plaintiff's own negligence in one or more of the said particulars directly and proximately caused whatever injuries she sustained by reason of her falling at said time and place. The reply is a general denial.

Upon trial the jury returned a verdict in favor of the plaintiff and assessed damages in the sum of $4,500. Judgment was entered upon the verdict. Thereafter the defendant filed a motion for judgment notwithstanding the verdict, based upon the contention that the court should have granted defendant's motion for a directed verdict, which was made at the trial. Defendant in the alternative filed a motion for a new trial, which was based upon the defendant's contention that the evidence at said trial was insufficient to support a verdict for the plaintiff and upon the defendant's further contention that the verdict was against the law in the particulars therein set forth. The motion was heard by the court and denied. The defendant appeals.

By its first two assignments of error the defendant asserts that the court erred in denying its motion for a nonsuit and thereafter in denying its motion for a directed verdict. Both motions adequately raised the question as to whether there was sufficient evidence to go to the jury on the issue of negligence by the defendant, and also presented the contention that the plaintiff was guilty of contributory negligence as a matter of law. We will consider the two assignments of error together.

The plaintiff testified that she was a user of Gasco briquets which she bought and paid for each month at the Gas Company office on Sixth and Salmon Streets in the city of Portland, and that she was there on the fifth day of February, 1952, with her little grandchild, five years of age. The fact of the plaintiff's fall is established but there were no eyewitnesses to it.

When she was paying her gas bill, plaintiff was looking at the model kitchen exhibit, or model kitchen display. The model display was probably three-quarters of the distance across the building. The plaintiff introduced in evidence a photograph of the kitchen display and testified concerning it that the picture approximately or accurately reproduces the conditions as they then existed. The picture is reproduced herewith. The plaintiff testified that she first became aware of the difference in the floor level, as indicated in the picture, when she fell. Concerning the manner of her fall, plaintiff testified that she fell 'awful funny. I was kind of picked up and thrown. Sometimes I think I got my toe caught in something, but I wouldn't say for sure, but that is the way it felt to me at that time. I couldn't say that.' She was asked to state what if anything she was observing as she was walking over toward the kitchen display, to which she answered that she was just looking straight ahead of her. She said that she saw the display and that it was the first time that she had seen it, although she had been going in there every month. The plaintiff was asked if she didn't think that the office was a well-lighted one, to which she answered, 'Well, the same as usual, yes.' However, she said that she knew that it wasn't very bright when she fell because the floor was 'real dark.' The floor was dark, 'kind of fancy.' She did not know whether she caught her heel or stubbed her toe on the edge of the platform. Her five-year-old granddaughter was with the plaintiff at the time, and was up on the platform ahead of the plaintiff. The evidence is undisputed that the household appliances which were on the floor of the display room were laid out in straight rows to form aisles or passageways about seven or eight feet in width. At the end of one of the rows and along one side of the showroom was the model kitchen display. It was not located in an aisle through which persons might pass, but was in the nature of a cul de sac. It was set on a platform 12 feet long, eight feet wide and about two and one-half inches high. The base of the platform was formed by two-by-fours laid flat with a wooden frame of three-fourths inch boards placed on top of the two-by-fours. The platform was covered with black linoleum with a multi-colored speckled or mottled design. The floor of the showroom was tile--dark red or terra cotta in color. Around the base of the platform, and covering the edge of the boards was an aluminum strip three-fourths of an inch in width.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The picture which is reproduced herewith was introduced in evidence by the plaintiff and discloses the situation with clarity. Testimony as to the physical conditions adds to our understanding merely the facts concerning the lighting of the area and the fact that there was an unobstructed area eight to ten feet in depth directly in front of the platform. The lighting in that area of the building was excellent and was equal to that in other of the great stores in the city of Portland. There were floodlights displaying the model kitchen, which cast a broad over-all light, and which diffused the light over the area and provided the general lighting of the area.

The plaintiff acknowledged as a witness that the floor of the showroom was a different color from the floor of the little platform. After her fall she sat down in a chair in front of the model kitchen display and then looked and observed without difficulty the elevation of the platform. The only other witness for the plaintiff was the physician who treated her injuries.

After the trial of the motion for nonsuit the defendant called three witnesses, and to their testimony there was no rebuttal. One witness, a salesman on the floor of the showroom, testified that some hundreds of people, mostly women, had inspected the model kitchen during the period prior to the plaintiff's fall, and that to his knowledge no one had ever tripped or fallen over the platform. He also testified that the lighting was excellent. Three floodlights were trained on the cabinets and appliances from columns adjacent to the platform.

This case differs materially from the many cases cited by plaintiff, and later to be analyzed, in which platforms and other obstructions were so placed that they protruded into the aisles through which the patrons of the store traveled. The model kitchen display more nearly represented a stage setting for display purposes, leading nowhere. We turn to the authorities.

The law concerning the duty of storekeepers to invitees is well established in this jurisdiction and need not be repeated here. Fox v. Royce, 194 Or. 419, 242 P.2d 190; Lee v. Meier & Frank Co., 166 Or. 600, 114 P.2d 136; Lopp v. First National Bank of Portland, 151 Or. 634, 51 P.2d 261; Briggs v. John Yeon Co., Inc., 168 Or. 239, 122 P.2d...