Huttinger v. G. C. Murphy Co., 19302

Decision Date26 January 1961
Docket NumberNo. 2,No. 19302,19302,2
Citation172 N.E.2d 74,131 Ind.App. 642
PartiesEthel M. HUTTINGER, Appellant, v. G. C. MURPHY COMPANY, Appellee
CourtIndiana Appellate Court

Louis H. Dunten, James P. Murphy, Fort Wayne, for appellant.

Leigh L. Hunt, Hunt & Suedhoff, Fort Wayne, Winslow Van Horne, Auburn, for appellee.

KELLEY, Judge.

At the conclusion of appellant's evidence, the court, upon motion of appellee, directed the jury to return a verdict for the latter. The propriety of such action by the court is the material question presented by the record herein.

Appellee operates a retail store in Fort Wayne, Indiana. On March 1, 1947 said store was open for the transaction of business and for entry by prospective customers. On said day it snowed most of the day. At about 1:30 o'clock P.M. of said day, appellant entered appellee's said store for the purpose of making a purchase of merchandise. Other customers had entered the store throughout the forenoon and up to the time of appellant's entrance whereby the floor of appellee's store, consisting of hard maple boards about three to three and one-half inches wide, had become wet and dark with water, snow and slush. Said flooring was treated about every two weeks, usually on Saturday night or Sunday, with a liquid microsheen which was applied with 'yarn mops about three feet wide' and with a wide broom, and worked into the floor. Also, the mops which were used to clean up at night during the week were frequently treated with the same liquid microsheen. Appellee maintained maintenance personnel who worked on the floor and on bad days the 'stock men' were called down whose duty it was to 'keep everything in good order for customers' coming into the store. The floor was not level from Calhoun Street to the back of the store, a distance of about 60 feet.

Appellee's store was located at the northeast corner of Calhoun and Wayne Streets in Fort Wayne and there was an entrance thereto from said Calhoun Street. Just inside the entrance was a vestibule with inner doors that opened into the store proper. About ten feet east of this entrance and 'a little' to the north thereof a six foot aisle ran along between the three foot high bannisters of a stairway and a sales counter. On the day aforesaid there were no mats of any kind at the doors or on the floor.

Appellant entered appellee's store by way of the Calhoun Street entrance. As she proceeded along the said aisle and at a point near said sales counter, she slipped and fell to the floor whereby she sustained the personal injuries giving rise to this action for damages therefor. Appellee accepts appellant's 'Narration of Evidence', with slight additions thereto, and we, therefore, summarize material and pertinent portions thereof:

'The floor was dark with water, snow and slush on it and quite a few people coming and going. * * * I slipped and fell about 3 feet from the bannister and could not get up. * * * My grey gloves had grease or oil on them, also my skirt and petticoat. * * * I saw a skid mark about 12 inches long about 3 feet back from the end of the bannister and in the middle of the aisle that was lighter in color than the rest of the floor and looked like it had oil or grease around it. Scraped clean in the center. I saw it when I was lying on the floor and when sitting on the chair. There was an oily substance on my clothing that had to be dry cleaned. * * * Before I fell I saw there was water and snow on the floor. I had not been in there before and do not know the condition of the floor previously, only when I was there.'

Appellant's complaint, with reference to the alleged negligence of appellee, charged as follows:

'that defendant was negligent, careless and reckless in the conduct and maintenance of its said premises and the floors thereof in this: in permitting the floors of its said premises to be and remain in a wet, slippery and dangerous condition; in permitting water and snow to be and remain upon an oiled floor; in permitting the accumulation of water or snow to remain on its said oiled floors; in failing to mop, remove, or take means or measures of clearing said snow and water from said oiled floor all of which could and in the exercise of reasonable care should have been done; in failing to supply and have a mat or other article at the inside entrance door of its premises so that customers entering into said store could wipe or clean the water or snow from their shoes; in failing to take any means or action to prevent injury to its patrons while in its said premises from slipping on said wet and dangerous floor, knowing of the condition of the weather out of doors.'

In determining when a court may properly grant and give a peremptory instruction to find for defendant, cognizance of the 'compelling laws', as set out in Whitaker v. Borntrager, 1954, 233 Ind. 678, 680, 681, 122 N.E.2d 734, must be taken. These are:

'When there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. Jackson Hill Coal & Coke Co. v. Bales et al., ...

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19 cases
  • White v. Evansville American Legion Home Association
    • United States
    • Indiana Appellate Court
    • 11 Junio 1965
    ...appellee. Appellee's only duty to the appellant was to keep its chairs in a reasonably safe condition. Huttinger v. G. C. Murphy Company (1961), 131 Ind.App. 642, 647, 172 N.E.2d 74. This instruction properly defined that duty under the holding in Evansville American Legion Home Association......
  • Gwaltney Drilling, Inc. v. McKee
    • United States
    • Indiana Appellate Court
    • 30 Junio 1970
    ...which the jury might reasonably draw. Garr v. Blissmer et al., 132 Ind.App. 635, 177 N.E.2d 913 (1961), and Huttinger v. G. C. Murphy Co., 131 Ind.App. 642, 172 N.E.2d 74 (1961). These rules were recently discussed and reaffirmed by this court in Lloyd v. Weimert, Ind.App., 257 N.E.2d 851 (......
  • Wade v. Three Sisters, Inc.
    • United States
    • Indiana Appellate Court
    • 14 Noviembre 1962
    ...for the defendant has been developed in a long line of cases. One of the most recent decisions is Huttinger v. G. C. Murphy Company (1961), 131 Ind.App. 642, 172 N.E.2d 74. However the leading authority is Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 680, 122 N.E.2d 734, in which the......
  • Devine v. Grace Construction Co. & Supply Co., 19335
    • United States
    • Indiana Appellate Court
    • 18 Octubre 1961
    ...a question for determination by the jury. Applying the principles of law handed down by this court in the case of Huttinger v. G. C. Murphy Co., Ind.App.1961, 172 N.E.2d 74 (transfer denied May 9, 1961), pertaining to the giving of peremptory instructions to find for the defendant, in which......
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