McVeigh v. McCullough

• Decision Date: 25 June 1963
• Docket Number: Nos. 10503 and 10504,s. 10503 and 10504
• Citation: 96 R.I. 412,192 A.2d 437
• Parties: Rose E. McVEIGH v. Samuel G. McGULLOUGH et al. James C. McVEIGH v. Samuel G. McCULLOUGH et al. Ex.
• Court: Rhode Island Supreme Court

Page 437

192 A.2d 437

96 R.I. 412

Rose E. McVEIGH v. Samuel G. McGULLOUGH et al.

James C. McVEIGH v. Samuel G. McCULLOUGH et al.

Ex. Nos. 10503 and 10504.

Supreme Court of Rhode Island.

June 25, 1963.

James J. McAleer, Joseph V. Cavanagh, Providence, for plaintiffs.

Gunning & LaFazia, Bruce M. Selya, Raymond A. LaFazia, Albert B. West, Providence, for defendants.

JOSLIN, Justice.

These are two actions of trespass on the case for negligence brought respectively by Rose E. McVeigh to recover for personal injuries resulting from a fall on the floor of a retail market store owned and operated by the defendants in Narragansett, and by her husband James C. McVeigh to recover consequential damages suffered by reason of such injuries to his wife. Both cases were tried together in the superior court before a jury which returned a verdict for the wife in the sum of $7,000 and for the husband in the sum of $3,000.

The defendants filed a motion for a new trial in each case and each motion was denied. Their exceptions to the denials of their motions for directed verdicts and for new trials, to certain adverse rulings on evidence, to other rulings of the trial justice during the trial and to a portion of the charge to the jury are urged before us. Other exceptions taken by them and forming a part of their bills of exceptions not having been briefed or argued are deemed to be waived. Since the liability in both cases depends upon the liability in the wife's case, our reference hereinafter to the plaintiff will refer to Rose McVeigh.

The undisputed testimony is that at about 11 a. m. on July 14, 1960 plaintiff fell as she stepped across the threshold of defendants' store to which she had gone for the first time that morning to make some purchases.

The same floor has been in the store during all the time it has been operated by defendants. A civil engineer testifying on behalf of defendants stated that the floor four feet back from the right side of the threshold is two and one-half inches lower than at the threshold and four and one-half feet back from the middle point of the threshold is three and three-sixteenth inches lower than at the threshold, and that the downward slope or pitch from the threshold toward the center of the store is not uniform. He also testified that there is a downward pitch both to the right and to the left from an imaginary line drawn from the center of the threshold and extending four feet into the store. He took no measurements to determine whether there are concavities between such middle line and other imaginary lines extending into the store from the right and left edges of the threshold. The plaintiff, however, maintains that there are such concavities and that they are clearly evidenced in photographic exhibits.

Rain started to fall in the early morning hours of the day in question and continued throughout the day and into the evening, during which period according to a United States meteorologist total rainfall was 2.12 inches. He described this as a lot of rainfall for one day and stated that the total average monthly rainfall in this state is just a little over 3 inches. The plaintiff characterized the rain as heavy; defendants as a generally rainy day.

The testimony is in substantial dispute as to the condition of the floor immediately in front of the threshold on the morning of the accident. Testimony for plaintiff was that the floor in such area was slippery and had a depression in it; that in the depression was a puddle obvious to the eye, 2 by 1 1/2 feet in size, and deep enough so that it would splash if hit with a hand; and that the doorway area was dark and poorly lighted. Testimony for defendants, on the other hand, was that the floor was wet or damp and that such condition resulted from rain being tracked or carried in on the wet feet or clothing of customers. The plaintiff would also have us believe that a reasonable inference to be drawn from the evidence was that rain had been driven into the open store, which faced north and which had no substantial overhang or awning, by what was described by plaintiff's son as being quite windy conditions. The defendants deny that there was any winddriven rain on the floor. The average wind velocity that morning as testified to by the meteorologist was between 9 and 13 miles per hour and was from the north, northeast.

The defendants' relation to plaintiff in the circumstances here present is well settled. They owed her a duty to use reasonable care to keep their premises in a safe condition for the purpose of the invitation extended to her. They were not, however, insurers of her safety. Her mere falling was not in and of itself evidence of negligence on their part. Langley v. F. W. Woolworth Co., 47 R.I. 165, 131 A. 194; Faubert v. Shartenberg's, Inc., 59 R.I. 278, 195 A. 218. In order to recover she has the burden to allege and prove some specific act of commission or omission by them which amounts in law to negligence and which was the proximate cause of her fall; and she must also show her own freedom from contributory negligence. Faubert v. Shartenberg's, Inc., supra; Wyzga v. David Harley Co., 60 R.I. 480, 199 A. 452. The burden is also on plaintiff to establish that the condition of the premises which caused her fall had remined long enough to give defendants reasonable notice, actual or constructive, of its existence and that they, after having such notice, negligently failed to remedy the danger or warn her of its presence or existence. Ziegler v. Providence Biltmore Hotel Co., 59 R.I. 326, 195 A. 397.

The defendants' first exceptions are to the denials of their motions for directed verdicts. The verdicts should not have been directed for defendants if on any reasonable view of the evidence the jury could have found for plaintiff. On such motions the trial justice is not permitted to weigh the evidence or pass upon the credibility of the witnesses. He is required to view the evidence in the light most favorable to plaintiff and to give her the benefit of all reasonable and legitimate inferences which could properly be drawn in her favor from the evidence. Kenyon v. Murray, 90 R.I. 423, 159 A.2d 376.

The defendants argue first that the cases should not have been submitted to the jury since there was no evidence that the floor was not in good repair or dangerous or negligently constructed or maintained. They rely principally on Faubert v. Shartenberg's, Inc., supra, Lapierre v. Greenwood, 85 R.I. 484, 133 A.2d 126, 135 A.2d 269, Ziegler v. Providence Biltmore Hotel Co., supra, Glennon v. Great A. & P. Tea Co., 90 R.I. 113, 155 A.2d 330, 157 A.2d 820, Moors v. Boston Elevated Ry., 305 Mass. 81, 25 N.E.2d 171, Kiley v. New York, N. H. & H. R. R., 301 Mass. 570, 17 N.E.2d 890, and Miller v. Gimbel Bros., Inc., 262 N.Y. 107, 186 N.E. 410. In these cases it was held that the invitor was not as a matter of law liable to the invitee. We shall refer briefly to each case to indicate how it is distinguishable from the instant case.

In Faubert the plaintiff's testimony that she fell on a wet, slippery, oily and unsafe floor involved such inherent improbabilities as to be self-contradictory. The plaintiff's fall in Lapierre took place on stairs with coverings which were 'old and worn,' the court observing, however, that the result might have been different if the coverings had been 'DILAPIDATED.' IN ZIEGLER THERE WAS NO evidence that the WeT, slippery, marble stairs on which the invitee fell were so constructed or in need of repair as to make them defective or unsafe. In Glennon the plaintiff, whose vision was obscured by bundles he was carrying, tripped over a concrete wall 2 1/2 to 4 inches high which separated a planted area from the sidewalk, and we found that there was no evidence showing that the wall was either negligently maintained or constructed. In Moors the only evidence as to negligence was that the plaintiff slipped on wet stairs, the court observing, however, that there was no evidence of the existence of a substantial amount of mud or water on the stairs or of a defect in them. In Miller the evidence as to negligence was limited to the fall of the invitee on some water or mud found in an entranceway on a rainy day.

Kiley more nearly resembles the case at bar than the other precedents relied upon by defendants. The plaintiff, although she did not feel any water under her feet, testified that she fell into a lot of water which was about one quarter of an inch deep. The court held that the evidence was not sufficient to warrant a finding that her fall was caused by slipping or by the wetness of the floor. In the instant case, however, plaintiff testified that as she entered the store she stepped into a large deep puddle which was slippery and that she 'slid like on a sheet of ice.' From such testimony it can reasonably be inferred that plaintiff's fall was caused by slipping because of the puddle.

When viewed most favorably to plaintiff the evidence here establishes that she fell by reason of stepping into a large and rather deep puddle of water which had accumulated at the entrance to defendants' market in a depression in a rough, slippery, sloping hardwood floor which had been there for at least sixteen years. Such a fact situation is more analogous to that found in Royer v. Najarian, 60 R.I. 368, 198 A. 562, and Cardall v. Shartenberg's, Inc., 69 R.I. 97, 31 A.2d 12, than it is to those in the cases heretofore discussed. In each of these cases the plaintiff fell on a sloping, wet, slippery terrazzo floor and in each case there was expert testimony that the kind of terrazzo used was dangerously slippery when wet.

In Najarian the action of the trial justice in nonsuiting the plaintiff was reversed and in Cardall this court held that the trial justice committed error in directing a verdict for the defendant.

While in the case at bar there was no expert evidence that the existence of the kind of puddle...