O'Flaherty v. Tarrou

• Decision Date: 24 June 1947
• Docket Number: (No. 9901)
• Citation: 130 W.Va. 326
• Court: West Virginia Supreme Court
• Parties: E. H. O'Flaherty v. Michael Tarrou, et al.

130 W.Va. 326

E. H. O'Flaherty

v.Michael Tarrou, et al.

(No. 9901)

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1947.

Decided June 24, 1947.

1. Negligence

"A person does not insure the safety of others whom he invites on his premises for business or other purposes, but he must be prudent to render the premises reasonably safe for the visit." Spears v. Goldberg, 122 W. Va. 514, Point 2, Syllabus.

2. Evidence

In an action of trespass on the case a verdict of the jury will not be aside on the ground of insufficiency of evidence, where the verdict is based upon a conflict in the evidence and is supported by substantial evidence.

3. Evidence

Where, in an action of trespass on the case, an invitee seeks to recover damages for personal injuries alleged to have been sustained as the result of a fall on the floor of invitor's premises, it is not error for the trial court to refuse to admit evidence of the absence of accidents and injuries on the premises over a period of years, where the record does not disclose that conditions similiar to those existing at the time of invitee's injury had existed on other occasions during such prior years.

4. Instructions

"Rule VI(e), Rules of Practice and Procedure for Trial Courts in West Virginia, sanctions the consideration of only specific objections to instructions. That rule is given statutory effect by Acts, 1935, Chapter 37. A general objection to an instruction will not subject it to judicial scrutiny." Hale v. McGinley, 119 W. Va. 565, Syl. But the foregoing rule does not apply to felony cases.

5. Instructions

The refusal of a proper instruction covered by other instructions is not error.

6. Damages

In an action for personal injuries, a verdict of a jury will not be disturbed solely on the ground of excessive damages, except where it plainly appears to have resulted from mistake, partiality, passion, prejudice, or lack of due consideration of the evidence.

Error to Circuit Court, Kanawha County.

Action of trespass on the case by E. H. O'Flaherty against Michael Tarrou and another to recover damages for personal injuries. The trial court directed jury to return a verdict in favor of defendant Peter Joseph. To review an adverse judgment defendant Tarrou brings error.

Affirmed.

Fox, President, and Haymond, Judge, dissenting.

Steptoe & Johnson, Stanley C. Morris and Wilson Anderson, for plaintiff in error.

Kay, Casto & Amos, John E. Amos and Vincent V. Chaney, for defendants in error.

Riley, Judge:

E. H. O'Flaherty instituted in the Circuit Court of Kanawha County this action of trespass on the case against Michael B. Tarrou, doing business as M. & L. Lunch, and Peter Joseph, doing business as Strand Billiards, to recover damages for alleged injuries sustained when he slipped and fell on the floor of the premises occupied by defendants. On the ground that at the time plaintiff was injured, the portion of the premises occupied by defendant, Peter Joseph, was closed, the trial court directed the jury to return a verdict in favor of defendant, Peter Joseph. This writ of error is prosecuted by the defendant, Michael B. Tarrou, to a judgment, based upon a jury verdict, against him in the amount of ten thousand dollars.

The defendants occupied a street-level room, approximately one hundred twenty feet long, in a building located at 207 Hale Street, in the City of Charleston. At a distance of approximately fifty feet back from the street entrance, a partition, the upper fourth of which is of lattice construction, extending from wall to wall, divides this room into a front and back section, which sections, in turn, are connected by a large archway, the top of which joins the lattice construction. Toilets and storage facilities are located at the rear of the room. In the left twothirds of the front section, as one enters from Hale Street, defendant Tarrou conducts a lunch counter and booths, the remaining third being occupied by Joseph for cigar counter. Joseph also operated pool and billiard tables in the section to the rear of the archway. Patrons of both defendants used the toilets and washrooms at the rear of the pool tables.

The front part of the room was well lighted with flourescent lighting fixtures, while the rear portion, when open, was lighted by ceiling lights and special lights over the pool tables. Just inside the pool room at the right of and near the top of the archway there was an electric light socket equipped with an unshaded 60-watt bulb, referred to in the record as the "night light."

On Sunday, December 9, 1945, defendant Joseph's cigar counter and pool and billiard business were closed, and the business of the defendant Tarrou did not open until four o'clock in the afternoon, at which time the pool room had been swept and mopped, but not oiled. Between sixthirty and seven o'clock of that evening, plaintiff, as he was accustomed to do, entered defendant's place of business, passed through the front part of the room and through the archway with the intention of going to the toilet and washroom located at the rear. About half way between the archway and toilet, while passing down an aisle between the pool tables, plaintiff stepped in a foreign substance identified in the record as human vomit, and fell to the floor thereby sustaining a broken hip. As a result of his injury, plaintiff has incurred indebtedness for hospital, medical and other services amounting to $443.32, and there is substantial evidence to the effect that he will be incapacitated to carry on his trade as a barber for about one year, which, on the basis of earnings at forty dollars a week, would amount to $2,080.00. He testified that on occasions he still suffers pain. His physician, Dr. Miyawaka, testified that the injury suffered by plaintiff was one which normally would cause severe pain, and that plaintiff might expect to continue to experience pain for a long period of time, and, in addition, Dr. Miyawaka testified that in his opinion there will be some future physical impairment, and that even if the fracture properly heals, there will probably be continued pain and discomfort. This physician further testified that "in any broken bone, particularly near a joint, and particularly in a man of his age, you would get some arthritic changes about that bone and there is some residual stiffness and pain that practically always occurs."

The gravamen of plaintiff's cause of action, as disclosed by the declaration, was the alleged negligence and carelessness of defendants in permitting the floor of the pool room to become dirty and covered with a slick foreign substance, making passage over the floor extremely dangerous and hazardous, and the negligence and carelessness of defendants in failing to keep the part of the premises between the archway and the toilet and washroom well lighted "so that patrons passing thereover could see to avoid any obstacles, obstructions or foreign substances blocking the said passage, or making travel thereover dangerous."

The evidence clearly shows that plaintiff was injured by a fall, caused by slipping on the foreign substance on the floor of the pool room and, except for the uncontradicted evidence that the floor had been mopped about four o'clock in the afternoon, there was no evidence which would indicate how and when the foreign substance got on the floor, and likewise there is no evidence that defendant Tarrou or any of his agents or servants had any knowledge of the presence of the foreign substance or should have had such knowledge.

But there is a clear conflict in the evidence on the question as to whether the pool room was sufficiently lighted at the time plaintiff was passing through. Plaintiff testified that the pool room was dark, and that he had passed through the pool room under similar conditions and on many previous occasions in order to use the toilet and washroom. One William J. Dryden, a witness for plaintiff, testified that he was in defendants' establishment on the day plaintiff was injured, and upon going back to the washroom, he saw plaintiff sitting on a stool between the pool tables. In answer to the query on direct examination as to whether there were any lights on in the pool room at that time, the witness answered that "I don't think there was, I am not sure." This witness testified that prior to plaintiff's injury, he went back to the toilet and noticed that the pool room "was not light and it was not real dark." This witness further testified that someone had warned him before he went back to watch for something on the floor, which he did and noticed "where somebody had vomited." On the other hand, defendant Tarrou and his witnesses contradict plaintiff as to the lighting conditions of the pool room. Mrs. Macy, a cook at the M. & L. Lunch counter testified that there was a 60-watt light above the archway which was customarily kept on after dark on Sundays, when the cigar counter...