Johnstone v. Bushnell, 388

• Decision Date: 05 January 1954
• Docket Number: No. 388,388
• Citation: 118 Vt. 162,102 A.2d 334
• Parties: JOHNSTONE v. BUSHNELL.
• Court: Vermont Supreme Court

Page 334

102 A.2d 334

118 Vt. 162

JOHNSTONE v. BUSHNELL.

No. 388.

Supreme Court of Vermont.

Jan. 5, 1954.

A. Pearley Feen & Philip W. Hunt, Burlington, for plaintiff.

Joseph A. McNamara, Guy M. Page, Guy M. Page, Jr., and Phyllis W. Page, Burlington, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CHASE, JJ.

CHASE, Justice.

This is an action of tort to recover for personal injuries and expenses incident thereto sustained in an accident. At the close of the plaintiff's case the defendant moved for a directed verdict in her favor on substantially these grounds: (1) No actionable negligence on the part of the defendant as the plaintiff was not a business visitor at the time and place of the injury to her. (2) The plaintiff was guilty of contributory negligence as a matter of law. The court granted the motion and allowed the plaintiff exceptions. The case is here on these exceptions since other exceptions are not briefed and therefore waived. Little v. Loud, 112 Vt. 299, 301, 23 A.2d 628.

The material facts taken in the light most favorable to the plaintiff are: On January 16, 1951 the plaintiff entered the women's apparel shop owned and operated by the defendant who was having a sale that day. The plaintiff selected a dress and took it to the fitting room in the rear of the shop intending to try it on. The fitting room was a space fifteen feet wide and five to seven feet deep separated from the main part of the shop by a cupboard. On either side of the cupboard were openings with drapes as means of entering and leaving the fitting room. The fitting room was well lighted. It was furnished with three chairs, a desk with a sewing machine on it, a floor screen and a hat rack with coat hangers. It had shelves for storing merchandise. When the plaintiff entered the southerly portion of the fitting room there were two persons in the northerly portion of the room, one in the middle portion and one in the southerly portion. The chairs and hangers were filled with boxes and clothing. The person in the southerly portion bumped into the plaintiff so she stepped into what appeared to be a little cloak room in which a coat was hanging beside an empty hook. She hung up the dress, stepped aside to unbutton her coat and fell down the stairs to the basement. The plaintiff didn't know that this 'little cloak room' was in fact a stair landing. It was reached through a door in the south end of the easterly wall of the fitting room. This door was opened wide against the south wall of the landing. There were shelves used for storage on the east wall as well as the coat and empty hook theretofore mentioned. The floor was painted maroon and the walls a light blue. It was unlighted except as the light from the fitting room shone into it. There was a 75 watt bulb near the south wall of the fitting room about three feet from the doorway to the stair landing. A person such as the defendant who was unfamiliar with the store would be unaware of the existence of the stairway. There was no sign to keep out of the 'little cloak room' and no sign appraising customers of the existence of the stairway.

The defendant in her brief admits that the plaintiff was a business visitor in the fitting room but argues that when she stepped through the door to the stair landing she did so for her own convenience and went into a place not intended by the defendant to be used by her customers and therefore was not a business visitor in that place and was owed no duty by the defendant.

A business visitor is one invited or permitted to enter or remain on land in possession of another for a purpose directly or indirectly connected with business dealings between them. Wool v. Larner, 112 Vt. 431, 435, 26 A.2d 89; McAdams v. Raymond S. Roberts, Inc., 117 Vt. 309, 311, 91 A.2d 706. There is an implied invitation to a business visitor to make such use of another's premises as he is reasonably justified in understanding the owner intended. McAdams v. Raymond S. Roberts, Inc., 117 Vt. 309, 311, 91 A.2d 706; Manley v. Haus, 113 Vt. 217, 221, 32 A.2d 668; Wool v. Larner, 112 Vt. 431, 436, 26 A.2d 89.

Whether the plaintiff was reasonably justified in thinking what she saw through the open door in east side of the fitting room was a little cloak room and whether she was reasonably justified in thinking the defendant intended it to be used by customers trying on dresses were questions of fact. Jurors acting as fair minded and unprejudiced persons, might have reasonably differed in deciding these facts. Where the evidence affords room for opposing inferences on the part of reasonable persons it is error to direct a verdict. Pacific Lumber Agency v. National Aircraft Materials Corp., 108 Vt. 10, 15, 182 A. 192 and cases cited.

The facts in Lucas v. Kelley, 102 Vt. 173, 147 A. 281; Pierce v. Whitcomb, 48 Vt. 127; Lerman Bros. v. Lewis, 277 Ky. 334, 126 S.W.2d 461 and McGillivray v. First National Stores, Inc., 326 Mass. 678, 96 N.E.2d 159 cited by the defendant are so...