Hubbard v. Montgomery Ward & Co.

• Decision Date: 28 December 1945
• Docket Number: No. 34091.,34091.
• Citation: Hubbard v. Montgomery Ward & Co., 221 Minn. 133, 21 N.W.2d 229 (Minn. 1945)
• Parties: HUBBARD v. MONTGOMERY WARD & CO., Inc.
• Court: Minnesota Supreme Court

21 N.W.2d 229

221 Minn. 133

HUBBARD v.MONTGOMERY WARD & CO., Inc.

No. 34091.

Supreme Court of Minnesota.

December 28, 1945.

Rehearing Denied January 10, 1946.

Appeal from District Court, Blue Earth County; Harry A. Johnson, Judge.

Action by Minnie C. Hubbard against Montgomery Ward & Company, Inc., for injuries sustained by plaintiff when she fell on floor in defendant's store.From an order denying its motion for judgment, notwithstanding verdict, or a new trial, the defendant appeals.

Reversed.

B. D. Grogan, of Mankato, and Doherty, Rumble, Butler, Sullivan & Mitchell, of St. Paul, for appellant.

C. A. Johnson and Gallagher, Farrish & Sheran, all of Mankato, for respondent.

LORING, Chief Justice.

This was an action for personal injuries sustained by plaintiff when she fell on the floor in defendant's store.Defendant appeals from an order denying its motion for judgment notwithstanding a verdict for plaintiff or a new trial.

Plaintiff fell while shopping in defendant's store.She asserts, and so testified, that the floor was negligently permitted to be in a slippery, greasy, wet condition, by reason of which she slipped and fell, sustaining a broken arm and a fractured hip.Defendant contended that plaintiff was knocked down by another customer, that it was not negligent in the maintenance of its floors, and also that plaintiff was guilty of contributory negligence.

Plaintiff, in the company of two friends, rode the store elevator to the second floor, where plaintiff and her woman companion went to the rug department.The third member of the group went in the opposite direction to attend to some business of his own.Presently, he joined them, and they all started to walk toward the elevator.Plaintiff testified that in so proceeding toward the elevator she slipped and fell.A witness for defendant testified that a man bumped into plaintiff and knocked her down.Plaintiff lay on the floor until an employe summoned help from the medical department, and a nurse employed by defendant came to the scene of the accident.With the assistance of one or two other persons, she lifted plaintiff into a wheel chair and conveyed her to what defendant called the "medical department."A doctor was summoned, and he made arrangements for plaintiff to be admitted to Midway Hospital in St. Paul, where she was hospitalized for some weeks.

Plaintiff testified that the floor where she fell was covered with linoleum, that it was greasy and wet, and littered with peanut shells, cigarette stumps, gum wrappers, etc.On plaintiff's behalf an expert witness testified as to the effect of wax and sweeping compounds used on linoleums — that they close the pores in the linoleum and tend to make floors more slippery.After this testimony was in, defendant's attorney moved to strike it "upon the ground it is immaterial and no foundation laid, and no suggestion or connection between the condition of the floor at Montgomery Ward and the description which he has given in reference to floors in general."The trial court denied the motion, and its action in so doing is assigned as error.Defendant also questions the sufficiency of the evidence to support the verdict and challenges a ruling denying a requested instruction.

1.The testimony sought to be stricken was not objected to prior to its reception.In such case, whether it should be stricken or allowed to stand is a matter largely within the discretion of the trial court.6 Dunnell, Dig. &Supp. § 9746, and cases under note 84.Whether in this case there was an abuse of discretion we need not determine, since a new trial must be granted on another ground.

2.Plaintiff's testimony is the only evidence supporting her version of how the misfortune befell her.Defendant's witnesses included various persons who were employes at the time of the accident and one person whose only connection with defendant was through her daughter, who was employed there.The latter is the only one who testified to having actually seen plaintiff fall.She testified that an unknown man bumped plaintiff and knocked her down.Defendant's employes testified that while plaintiff was waiting for the doctor she told them that someone had bumped her.Plaintiff admits making such a statement but testified that she did so only because she needed help and thought that such a statement would bring quicker and kinder action.She testified that she was very much worried and upset at the time she made the statement.It was for the jury to determine what happened, and we cannot say as a matter of law that they were not justified in accepting plaintiff's version of how the accident occurred or as to the condition of the floor.

Defendant asserts that there is no evidence that it had notice of the hazardous condition of its floor so that a duty arose to remedy the situation.It relies on Penny v. Sears Roebuck & Co., 193 Minn. 65, 258 N.W. 522, where...