Magness v. Sidmans Restaurants, Inc.
| Decision Date | 12 June 1965 |
| Docket Number | No. 43994,43994 |
| Citation | 195 Kan. 30,402 P.2d 767 |
| Parties | Katherine O. MAGNESS, Appellant, v. SIDMANS RESTAURANTS, INC., a Kansas Corporation, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record in an action for personal injuries alleged to have been sustained by the plaintiff when she slipped on a pickle which was on the floor of defendant's cafeteria-type restaurant, is examined, and it is held: The district court did not err in sustaining defendant's motion for a directed verdict and rendering judgment for the defendant.
A. D. Weiskirch, Wichita, argued the cause and was on the briefs for appellant.
Alvin D. Herrington, Wichita, argued the cause, and William Tinker, Arthur W. Skaer, Hugh P. Quinn, Richard T. Foster and Lee H. Woodard, Wichita, were with him on the briefs for appellee.
This was an action to recover damages for personal injuries. At the conclusion of plaintiff's evidence, the district court sustained defendant's motion for a directed verdict and entered judgment for the defendant. The plaintiff has appealed.
The plaintiff, a 41-year-old housewife, resided in Wichita. The defendant, a Kansas corporation, operated a cafeteria-type restaurant at 1601 East Douglas, Wichita, under the name of South Seas. The restaurant was open to the public and patrons served food to themselves and carried it to the tables for consumption.
The following is a summary of the testimony of the plaintiff and her husband. On June 19, 1962, plaintiff and her husband arrived at the restaurant for dinner at approximately 7:30 p. m. Each took a plate and proceeded along the food line toward the south, helping themselves to the food. The plaintiff proceeded down the west aisle while her husband proceeded down the east aisle. She partially served herself and observed there were only a few pieces of fried chicken, and was advised by a hostess at the food line 'there is some on the way out now.' They waited a little while, and her husband then asked if she would mind if he went ahead and sat down. He then went into the dining area and sat down at a table. By this time, other people in the food line ahead of them had served themselves and had taken two tables to the northwest of the table where plaintiff's husband was sitting. The plaintiff waited at the south end of the food line for some four or five minutes. She then helped herself to the fried chicken which had arrived, and proceeded toward the table where her husband was sitting. This table was located in front of or to the north of a post which was six or eight feet from where the plaintiff left the food line and directly west of the south end of the bamboo partition. There was a tile floor from the bamboo partition to the table, and the restaurant was dimly lighted.
Upon leaving the food line, plaintiff proceeded along the same route as her husband except he had gone behind the post to the west side of the table and she proceeded directly to the east side of the table. At the time, plaintiff was carrying her dinner plate in her right hand, a salad plate in her left hand and had her purse over her right arm. She was holding the plates in a 'normal position' and was walking toward the table where she was going to sit. When the plaintiff got approximately halfway to the table she slipped on a pickle and twisted and almost went down. As she slipped, the assistant manager grabbed her by the arm and 'held the upper part of her body secure while the lower portion was twisting and sliding.' The plaintiff did not know where the assistant manager was standing prior to the time she slipped and did not see him on her way to the table. Despite her near fall and the fact that the assistant manager grabbed her by the arm, she 'did not spill any of the food off the plates she was carrying.' On his way to the table the plaintiff's husband did not see a pickle.
After the plaintiff slipped, the assistant manager picked up a pickle from the floor and put it in a container and told a bus boy to clean up the pickle juice. There was nothing else on the floor. After the mashed pickle and juice had been cleaned up, the plaintiff sat down at the table with her husband and they started to eat their dinner. While eating, the plaintiff's husband wanted more water. He held up his glass but received no response from the waitresses. There were three waitresses sitting in the back of the restaurant and the waitress who had waited upon him and his wife was in the front of the restaurant polishing some chrome. He went to the front of thr restaurant and requested some water. The assistant manager told him, 'you will have to excuse us, we are having help trouble, they are quarreling among themselves.' Plaintiff's husband testified that 'the little waitress that waited on us did good,' and that when he indicated his water glass was empty, she was at the front of the restaurant 'shining on some chrome.' There was no testimony as to what the other waitresses were doing when the plaintiff slipped, or prior thereto. After they finished eating, the plaintiff and her husband left without anything further being said.
The district court announced the following reasons for sustaining the defendant's motion for a directed verdict:
'1. That there is no evidence upon which a jury could find that the defendant, its agents, servants or employees had actual knowledge of the pickle on the floor.
'2. That there is no evidence upon which a jury could find that the pickle had been on the floor for such a length of time that in the exercise of reasonable care the defendant, its agents or employees should have known of it.
In seeking reversal, the plaintiff contends she was a business invitee when she entered defendant's cafeteria, helped herself to food and started to walk to a table in the dining...
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Jackson v. K-Mart Corp.
...view of the concept of "creating a dangerous condition" than it had expressed in other cases. See, e.g., Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 402 P.2d 767 (1965) (defendant's motion for directed verdict granted where plaintiff slipped on a pickle on the floor of In Elrod, a ju......
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Jackson v. K-Mart Corp.
...Kan.App.2d at 687, 732 P.2d 801. See Carter v. Food Center, Inc., 207 Kan. 332, 335, 485 P.2d 306 (1971); Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 33, 402 P.2d 767 (1965). Kansas courts have stated that the grounds for a proprietor's liability in a slip-and-fall case is the propri......
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...F.Supp. 1275, 1279 (D.Kan.1996); Jackson v. K–Mart Corp., 251 Kan. 700, 840 P.2d 463, 465 (1992). 20.Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 402 P.2d 767, 769 (1965). See PIK Civ.3d 126.04. 21.Jackson, 840 P.2d at 470. 22.Napell v. Aten Dep't Store, Inc., 115 F.Supp.2d 1275, 1280......
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Smith v. Mr. D's, Inc.
...risk. However, a proprietor is not an insurer against all accidents which may befall invitees on the premises. (Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 402 P.2d 767; Little v. Butner, 186 Kan. 75, 348 P.2d 1022.) The Little case has become a lodestar in this state on the subject ......