Lund v. Mangelson

• Decision Date: 19 April 1968
• Docket Number: No. 36727,36727
• Citation: 158 N.W.2d 223,183 Neb. 99
• Parties: Helen Marie LUND, Appellee, v. Harold MANGELSON d/b/a Ben Franklin 5 and 10 Cent Store, Appellant.
• Court: Nebraska Supreme Court

Page 223

158 N.W.2d 223

183 Neb. 99

Helen Marie LUND, Appellee, v. Harold MANGELSON d/b/a Ben Franklin 5 and 10 Cent Store, Appellant.

No. 36727.

Supreme Court of Nebraska.

April 19, 1968.

Syllabus by the Court

1. In every case, before the evidence is submitted to the jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.

2. A motion for a directed verdict or for judgment notwithstanding the verdict must be treated as an admission of the truth of all material and relevant evidence submitted on behalf of the party against whom the motion is directed. Such party is entitled to have every controverted fact resolved in his favor and to have the benefit of every inference that can reasonably be deduced from the evidence.

3. In an action for damages for negligence the burden is on the plaintiff to show by direct or circumstantial evidence that there was a negligent act or omission by the defendant and that it was the proximate cause of plaintiff's injury or a cause which proximately contributed to it.

4. The doctrine of res ipsa loquitur proceeds on the theory that, under special circumstances which invoke its operation, the plaintiff is unable to specify the particular act of negligence which caused the injury, but if the petition alleges particular acts of negligence, then the plaintiff, in order to recover, must establish the specific negligence alleged, and the doctrine of res ipsa loquitur cannot be applied.

5. The owner of a business establishment has a legal duty to exercise ordinary care to keep his premises reasonably safe for the use of a business invitee. This, however, does not make him an insurer of his safety.

6. Negligence and the duty to use due care do not exist in the abstract but must be measured against a particular set of facts and circumstances.

7. In an action for negligence based on specific acts of negligence, the plaintiff, in order to recover, must establish at least one of the specific acts of negligence alleged.

Sodoro & Mears, Jon S. Okun, Omaha, for appellant.

Matthews, Kelley & Cannon, Omaha, for appellee.

Sodoro & Meares, Jon S. Okun, Omaha, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.

SPENCER, Justice.

This is an action for damages as a result of an accident which occurred at the Ben Franklin 5 and 10 Cent Store at 3457 South Eighty-fourth Street, Omaha, Nebraska. At the close of the evidence defendant filed a motion for a directed verdict. This was overruled and the case was submitted to the jury which returned a verdict for the plaintiff. Defendant thereafter filed a motion for judgment notwithsanding the verdict or in the alternative for a new trial. When this motion was overruled, defendant perfected an appeal to this court.

The incident occurred on October 8, 1965, when plaintiff's foot came in contact with one of the doors of defendant's place of business. Defendant's place of business has two sets of doors, both of which open to the west. Plaintiff entered the store through one of the south pair of doors. The weather was extremely windy. Plaintiff testified she had trouble getting in the store and to do so had to pull the door 'awfully hard.' Plaintiff left the store through one of the north pair of doors. Her testimony on her exit is as follows: 'Q. When you got to that door, what did you do? A. Well, I pushed the door. I was standing like this (indicating), and I pushed the door, and I had my purse here (indicating). I pushed the door and then I just put my foot out. I expected the door to go open and come back like regular doors. I thought, Well, I can go out. I pushed the door, and here come a gust of wind and brought the door back. Q. At the time the gust of wind came up, were you holding the door open for yourself? A. Yes. Q. And did you feel the pressure of the wind against the door? A. Yes. Q. Now, was the action of the door slowed by any mechanism that you could feel? A. No. That was what I expected. When the door flew open, like, I expected it to go back like regular doors do. Q. You expected it to go back slowly? A. Yes. Q. What did it do? A. It came back real fast. Q. What happened to you? A. It caught my foot. Q. Now, just a minute, I want to know what caught your foot, what part of the door. A. The edge of the aluminum door. Q. Where with relation to the swinging lower corner of the door? A. Right in the corner. Q. Was it the corner of the door? A. Yes, right in the corner.'

Plaintiff's amended petition sets out the following specific allegations of negligence, all of which were submitted to the jury: '1. In permitting said door, which opened onto an unprotected and very windy area, to remain for many months without any effective retarder to sudden closing; 2. In failing to repair or replace the retarder thereon, when the defendant knew it was inoperative, and he had ample opportunity to repair; 3. In failing to warn plaintiff of the danger incident to the uncontrolled nature of the door.'

The defendant alleges eight assignments of error. We condense them to two: First, the court erred in ruling that there was sufficient evidence of defendant's negligence to go to the jury; and, second, and court erred in giving instruction No. 2, which set out the allegations of negligence listed above.

We have set out the testimony of plaintiff in detail because it is the only evidence in the record offered by the plaintiff to prove a defective retarder, failure to repair, and failure to warn or protect plaintiff from an uncontrolled door. There is not a scintilla of evidence in this record to prove that the door remained for even an hour without any effective retarder to sudden closing. Except for the happening of the accident, as described by the plaintiff and the testimony of plaintiff's expert witness that the outside paving was not level so the bottom of the door was not flush with the sidewalk, there is nothing from which it can be inferred the door was in an unreasonably dangerous condition. Plaintiff's expert testified he walked into the store through the door and back out without making any measurements or test of any kind. He did not testify that the retarder was deficient, but merely testified to a conclusion that the door shouldn't slam if the closer was properly adjusted. He also testified he didn't notice any molding or dulling of the corners and...