Jenson v. S. H. Kress & Co

• Decision Date: 11 October 1935
• Docket Number: 5487
• Parties: JENSON v. S. H. KRESS & CO
• Court: Utah Supreme Court

49 P.2d 958

87 Utah 434

JENSON v. S. H. KRESS & CO

No. 5487

Supreme Court of Utah

October 11, 1935

Appeal from District Court, Second District, Weber County; L. A Wade, Judge.

Action by Alice Vera Jenson against S. H. Kress & Company. From a judgment for plaintiff, defendant appeals.

REVERSED AND REMANDED.

Richards & Richards, of Salt Lake City, for appellant.

Arthur Woolley, of Ogden, for respondent.

WOLFE Justice. ELIAS HANSEN, C. J., and FOLLAND, and EPHRAIM HANSON, JJ., concur. MOFFAT, Justice, concurring in the result.

OPINION

WOLFE, Justice.

In this case the jury returned a verdict in favor of the plaintiff for $ 1,570 as damages for injuries caused by alleged negligence in maintaining a cracked showcase. The material facts are as follows: The defendant and appellant on the 18th day of May, 1932, and prior thereto, conducted a general mercantile store in Ogden City. On that day about 4 o'clock in the afternoon, plaintiff entered defendant's store to buy some dress materials. She was approximately six months pregnant at that time. As she proceeded west down the south aisle of said store, she turned sidewise facing the counter which formed the north side of the aisle in order to pass three persons who were standing therein. In so passing she felt a pain in her abdomen. Upon looking down, she found that she was cut and was bleeding considerably. It was found that a triangular splinter of glass about one inch at the base and running into a point over a distance of about three inches had pierced her abdomen. There was evidence of the damage to her clothes, to her person, of mental suffering, expense, etc. The jagged piece of glass which punctured her abdomen came from one of the removable glass panels which were set up perpendicularly the entire length of the showcase. These panels were about two feet in length and were joined end to end and their joinings held together by risers or clamps which held the glass in the groove. The clamp is held by a couple of screws. The young lady who tended the counter testified that on the morning of the day the accident happened she had taken out the glass and washed it and put it back. This she did once or twice a year. This was the first time in eight months that she had tended that counter that she had taken the glass out and washed it. There was no evidence as to how the glass got cracked, or how long it had been cracked before the plaintiff was cut by it. The plaintiff's evidence did not go any further than to show that the plaintiff had been injured by this piece of glass penetrating her abdomen while she was brushing up against the counter. Appellant contends that this case is directly controlled by the case of Quinn v. Utah Gas & Coke Co., 42 Utah 113, 129 P. 362, 43 L. R. A. (N. S.) 328. Respondent contends that the doctrine of res ipsa loquitur applies. Both sides admit that the appellant's duty was to exercise ordinary care and diligence to provide and maintain a reasonable safe place of business for its customers and to exercise the same degree of care and diligence to prevent injury to them and to their property while they are lawfully in its place of business or on the premises. Both sides admit that appellant was not an insurer of the safety of its customers. The respondent contends that a case of negligence has been made out by showing that the piece of jagged glass penetrated her abdomen while she was moving along the counter.

We cannot see how this case differs from the Quinn Case. In that case a bottle of ink had spilled, and plaintiff's dress was damaged by ink running upon it. In this case there was a cracked panel in the showcase and the person of plaintiff was injured. In neither case did any one know how the ink was spilled or the glass broken. In both cases the cause of the spilled ink or the broken glass may have been caused by the customer who was damaged or by another customer, or may have been caused by some representative of the company without negligence and unnoticed when it was done, or, in both cases, it may have been caused by the negligence of the company through a servant. The difficulty is that it is in the realm of speculation, and under such circumstances the doctrine of res ipsa loquitur cannot apply. It applies where the thing from or by which the apparent negligence speaks is shown to be under the control or the management of the store and the accident is such, as, in the ordinary course of things, does not or would not happen if those who had the management used the proper care. Where the way in which the accident happened warrants an inference of negligence, then the mere happening speaks for itself. Even then it is only evidence from which the jury may infer negligence. It is not negligence in law. See Williamson v. Salt Lake & Ogden R. Co., 52 Utah 84, 172 P. 680, L. R. A. 1918F, 588. If the circumstances are equally consistent with a cause which would not be attributable to negligence, then the doctrine does not apply. The stage is set for the happening of the accident as the victim walks upon it. If, from the set stage as it was before the accident happened, it can be inferred from the setting itself that there was an omission or commission of the management amounting to negligence, then the thing itself speaks. Thus, cases which deal with falling elevators in office buildings or stores are illustrations. Where the elevator could apparently have fallen only because the instrumentality was itself defective, the fact that the elevator fell bespeaks of negligence in failing to properly inspect or keep it in condition. It is the same where something falls on the head of a customer from above and from the condition of the place where the object became detached it can be inferred that it fell because of neglect or failure to take notice of a defect which must have existed for a considerable length of time. All of the cases cited by respondent are in that class. In the case of Winterowd v. Christensen, 68 Utah 546, 251 P. 360, 361, the board in the floor of the grandstand, which broke without splintering under the plaintiff's weight, was a "2x10 plank" and was "decomposed and dark, soggy, pithy." The thing itself bespoke negligence in using a board in that condition in a grandstand where business invitees and persons paying admission were to congregate. In the case of Williamson v. Salt Lake & Ogden R. Co., 52 Utah 84, 172 P. 680, L. R. A. 1918F, 588, it was held that the sudden starting of the train warranted an inference that it was due to something unusual or extraordinary occurring in the operation and management of the train which could only be explained by the railroad company itself. In Law v. Morris, 102 N.J.L. 650, 133 A. 427, 46 A. L. R. 1108, the plaintiff entered the premises of defendant to purchase materials for dresses. As she was examining the materials a piece of plaster, without warning, fell from the ceiling and struck her on the head, injuring her. Here the fact the plaster was in such condition as would, under ordinary circumstances, fall from the ceiling itself gave rise to the inference that there had been neglect in maintaining it. The case illustrates the difference between the principles involved in it and the instant case. In the Law Case no customer could have dislodged the plaster. In the instant case it was just as consistent that the plaintiff herself or some other customer had leaned against the showcase, wrenching the panels and thus splitting off a piece of glass, as if the defendant had done it negligently. In the Law Case the inference was that the plaster had fallen because of neglect, and there being no evidence that any immediate shock or blow had loosened it. In the instant case there could be no such inference because the glass was exposed to other people within a very short time immediately before the accident occurred which might make it impossible for the defendant to have taken notice of it. In the case of Russel v. Stewart Dry-Goods Co. (Ky.) 22 Ky. L. Rep. 121, 56 S.W. 707, 708, the injury was caused by a splinter from the floor entering appellant's foot through her shoe. The court said:

"Common experience shows us all that a sound, well-kept floor would not ordinarily, in walking across same, injure a person's foot, through the sole of the shoe, as the evidence tends to show in this case."

It is impossible to tell from this case just what type of splinter entered the plaintiff's foot. If the situation showed that the piece of the floor which penetrated her foot was such as could not have been dislodged or made by other customers, but raised an inference only of a poorly kept floor, then it comes under the plaster case. If not, then it appears to us it should come under the doctrine of the Quinn Case. In Wine v. Newcomb, Endicott &amp Co., 203 Mich. 445, 169 N.W. 832, the plaintiff, while crossing an aisle, tripped over a rope being handled by an employee removing holiday decorations. In this case it was almost negligence as a matter of law. It appeared that there was direct evidence of an employee's handling of a rope in such a negligent manner that the plaintiff tripped over it. This was sufficient evidence to go to the jury as to the defendant's negligence. In Ober v. The Golden Rule, 146 Minn. 347, 178 N.W. 586, the company built supports for a framework extending across...