Jakel v. Brockelman Bros., Inc.

• Decision Date: 25 June 1941
• Citation: 21 A.2d 155
• Parties: JAKEL v. BROCKELMAN BROS., Inc.
• Court: New Hampshire Supreme Court

21 A.2d 155

JAKEL

v. BROCKELMAN BROS., Inc.

Supreme Court of New Hampshire. Hillsborough.

June 25, 1941.

Transferred from Superior Court, Hillsborough County; Connor, Judge.

Action on the case by Anna Jakel against the Brockelman Brothers, Incorporated, for injuries sustained as result of a fall on the floor of defendant's store. Verdict for the plaintiff and the case was transferred to the Supreme Court upon the defendant's exceptions to the denial of his motion for a nonsuit and directed verdict, to the refusal of the court to grant the defendant's requests for instructions and to the charge of the court as given.

Judgment for the defendant.

Case for negligence, to recover damages for the injuries sustained by the plaintiff as a result of a fall on the floor of the defendant's store in Nashua. Trial by jury with a verdict for the plaintiff. Transferred by Connor, J, upon the defendant's exceptions to the denial of its motions for a nonsuit and directed verdict; to the refusal of the court to grant the defendant's requests for instructions, and to the charge of the court as given.

The plaintiff testified that she entered the defendant's store on June 16, 1939, and after making some purchases in the front of the store, proceeded to the canned goods department in the rear, where she made a purchase. As she was leaving this department, she fell between the two counters forming the entrance. She further testified as follows: "After I fell I could see a mark where my foot slipped and slid. Q. Will you describe the mark, Mrs. Jakel? A. It looked as if it were wet and green."

Other facts are stated in the opinion.

O'Connor & O'Connor, of Manchester (Denis F. O'Connor, of Manchester, orally), for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Winthrop Wadleigh, of Manchester, orally), for defendant.

BRANCH, Justice.

There is no controversy between the parties as to the rule of law applicable to this case. They agree that it is stated with substantial accuracy in 2 Restatement of Torts, Section 343. Under the rule there stated, the plaintiff was bound to prove, 1, that there was a dangerous substance on the floor of the defendant's store when she was injured, and 2, that it had been there long enough to charge the defendant with knowledge of its presence. The plaintiff attempted to prove the presence of a dangerous substance on the floor of the defendant's store by her testimony that when she looked after her fall she saw a "mark" on the floor which looked "wet and green." The evidence of the defendant's manager, called as a witness by the plaintiff was that there was a black "scuff mark" on the floor and nothing else. From the plaintiff's statement that the mark looked "wet and green" it is argued that the jury might have found that she slipped on a vegetable substance of some kind. Assuming this to be so, the testimony of the plaintiff fails to prove that this substance was on the floor...