Jacobson v. Yoken's, Inc.

• Decision Date: 14 December 1962
• Parties: Arthur JACOBSON v. YOKEN'S, INC. Dora JACOBSON v. YOKEN'S, INC.
• Court: New Hampshire Supreme Court

Page 148

186 A.2d 148

104 N.H. 331

Arthur JACOBSON v. YOKEN'S, INC.

Dora JACOBSON v. YOKEN'S, INC.

Supreme Court of New Hampshire.

Argued Oct. 2, 1962.

Decided Nov. 30, 1962.

Rehearing Denied Dec. 14, 1962.

William E. Nolin, Claremont, and McLane, Carleton, Graf, Greene & Brown and G. Marshall Abbey, Manchester (Mr. Abbey), for plaintiffs.

Devine, Millimet & McDonough, Manchester (Shane Devine, Manchester), for defendant.

WHEELER, Justice.

The chief contention of the defendant is that there was insufficient evidence to submit the question of the plaintiff's negligence to the jury, and that its motions for nonsuits and directed verdicts should have been granted. Taking the evidence most favorable to the plaintiff, it could be found that the plaintiff was injured while attending a regional meeting of Hadassah, a Zionist women's organization at Yoken's restaurant at Portsmouth, New Hampshire, arrangements for which had been made the previous March. The meeting was scheduled to commence around ten A. M. with a coffee hour followed by a business meeting, luncheon and speaking. The registration fee for each member present was two dollars, out of which the defendant received one dollar and a quarter for the coffee hour, luncheon and use of the premises, and Mrs. Yoken was credited with a contribution of the balance to Hadassah.

The plaintiff arrived at Yoken's with a woman companion around ten A. M. and waited outside for two other ladies to arrive in another car. They then entered the restaurant, paid the registration fee at the door and were informed that coffee and cakes were being served in the rear of the 'Spouter Room.' At that time forty to fifty women were in the room moving about drinking coffee and eating cakes. This room was divided with a waist-high room divider, one side of which was set up with tables and chairs for the luncheon. The other side was set up with a head table and chairs for the business meeting.

The ladies proceeded down the aisle to the rear of the room in single file with the plaintiff's daughter leading, followed by the plaintiff. When about half way across the room the plaintiff's daughter felt herself sliding and turned and warned her mother. The plaintiff then felt herself slipping, grabbed a chair and fell to the floor on her right side. There was coffee and cream on the floor where she fell and there was an oval stain on the right side of the plaintiff's skirt after the fall. There were no employees of the defendant assigned to the room at the time except Mrs. Clarice Yoken, one of the principal stockholders of the defendant and an active member of Hadassah. During the coffee hour Mrs. Yoken was in and out of the room attending to making the coffee and supplying the serving tables. She normally acts as 'hostess and all around helper' in the restaurant. Tables and chairs were not provided for the guests at the coffee hour.

The floor in the 'Spouter Room' is of hard maple. It was sanded in 1958 and two coats of Hillyard's 'Trophy Gym Finish' was applied. The floor was thereafter cleaned once a week with a product called 'Super Shine-All' and spot washed as needed. It had been cleaned the day before the accident. It was established that when thus treated and after drying the floor surface more than met the minimum standards of slip resistance, but when wet with coffee and cream it would not. If wet it became a solution of synthetic detergent and 'would be dangerously slippery. A person would be liable to fall on it.'

The 'Spouter Room' when in regular operation seats 165 to 175 people and normally is staffed with two to three bus boys and ten waitresses. The defendant's manager testified that 'Shine-All' was a 'soaping product.' The defendant's knowledge and experience concerning substances spilled on the floor appeared from the following testimony of the manager: 'Q. (Mr. Brown) * * * [I]sn't it the fact that with the number of people that are in that room when you are open, eating, that it is a daily occurrence of food or liquid getting on that floor, staining it, requiring cleaning? A. (Mr. McLeod) I suppose it could be, but we clean it up if something does happen. When we are operating we have those accidents. The minute that happens we stop everything, get a bus boy, he gets cloths or a mop and cleans it. Q. (Mr. Brown) As soon as it comes to your attention? A. (Mr. McLeod) Immediately. Q. (Mr....