Jackson v. B. Lowenstein & Bros., Inc.

• Decision Date: 17 February 1940
• Parties: JACKSON v. B. LOWENSTEIN & BROS., Inc.
• Court: Tennessee Supreme Court

136 S.W.2d 495

175 Tenn. 535

JACKSON v. B. LOWENSTEIN & BROS., Inc.

Supreme Court of Tennessee.

February 17, 1940

Appeal from Circuit Court, Shelby County; Ben L. Capell, Judge.

Action by Mrs. Virginia Jackson against B. Lowenstein & Bros., Inc. for injuries sustained in defendant's department store. From a judgment for defendant after sustaining defendant's demurrer, plaintiff appeals.

Reversed and remanded.

Exby Moriarty & Pierce, Kenneth Rayner, and Auvergne Blaylock, all of Memphis, for plaintiff.

King Taylor & King, of Memphis, for defendant.

EDWARD J. SMITH, Special Justice.

This is an appeal from a judgment of the trial court sustaining a demurrer to the declaration, and dismissing the plaintiff's action for personal injuries.

The declaration states, in substance, that the defendant operates a large department store in the city of Memphis, and that the South Main street door, leading from the street, through which patrons and customers enter the store, is directly faced by a narrow stairway, without handrails, descending from the first floor to the basement floor to which customers and patrons are invited to descend.

At about half the distance between the first and basement floors there is a right angle turn to this stairway, and on the first floor a large rubber mat was spread on the area inside the street door, in such a way that one of its edges overlapped the first step of the stairway leading to the basement.

With these conditions existing, between one and two o'clock on the afternoon of January 31, 1938, Mrs. W. D. Holloman, who was carrying her infant daughter in her arms, and was accompanied by her father and mother, Mr. and Mrs. R. A. Atkins, entered the store of the defendant through the South Main street entrance for the purpose of making purchases therein.

Wishing to descend to the basement floor, and believing that she had a sure footing, she stepped on the overlapping edge of the rubber mat, lost her footing, and was thrown, with the baby in her arms, down the stairs to the landing at which point there was a right angle turn in the stairway, leading to the basement.

Her father, and a number of others in the store, seeing her predicament, rushed to her assistance, and when her father had reached the right angle turn of the stairway, others who were seeking to aid her, jostled him so that he lost his balance, and fell from the right angle turn in the stairway down the stairs, leading to the basement, which Mrs. Jackson a customer, was ascending, at the time, so that Mr. Atkins was thrown violently against her, causing the injuries upon which her suit is based.

The defendant demurred to the declaration on four grounds, which, in varying form, are based on the proposition that under the facts stated in the declaration, the injury which Mrs. Jackson received was not reasonably foreseeable, and was not the natural and probable consequence of Mrs. Holloman's fall down the stairway.

As negligence cannot operate in a vacuum, and an act, which, under one set of circumstances might be harmless, under different circumstances may be injurious, and cause harm to another, it would be bootless to engage in an extended discussion of the authorities dealing with legal causation.

Two comparatively recent cases, S. S. Singleton Abbey v. S. S. Paludina, [1927] A.C. 16, and Palsgraf v. Long Island Railroad Company, 1928, 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253, discuss at some length legal cause and effect in the law of torts, and significantly enough in the first case three of the law lords were of the opinion that there was no liability, while two were of the opinion that there was, and in the second case four judges concluded that there was no liability, while three were of the contrary opinion.

These two cases, by virtue of the sharp difference of opinion of the judges, should be a warning to appellate courts not lightly to assume the primary duty of determining liability or nonliability, in actions of tort, but to leave that duty where the Constitution has placed it, with the jury, as triers of facts, and if they act capriciously and arbitrarily to supervise their action.

An interesting discussion of the subject now in hand may be found in Goodhart, The Unforeseeable Consequences of a Negligent Act, 39 Yale Law Journal (1930) 449, reprinted in his essays, Jurisprudence and the Common Law, under the title The Palsgrap Case 129.

A common sense definition of legal cause and effect is furnished by Armstrong v. Montgomery Street Railway Co., 1899, 123 Ala. 233, 26 So....