Noland v. Sears, Roebuck & Co.
| Decision Date | 10 April 1971 |
| Docket Number | No. 45930,45930 |
| Citation | 207 Kan. 72,483 P.2d 1029 |
| Parties | Maxine NOLAND, Appellant, v. SEARS, ROEBUCK AND COMPANY, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Rules for testing the sufficiency of evidence to withstand a motion to dismiss, or for a directed verdict, made at the conclusion of a plaintiff's case are re-stated.
2. The breach of a duty imposed by statutory law or by municipal ordinance constitutes negligence per se and provides a basis for the recovery of damages proximately resulting therefrom.
3. The duty owed by the proprietor of a business to a business invitee is to exercise due care in keeping his premises reasonably safe for the latter's use and to warn him of dangerous conditions existing therein which are reasonably known, and the risks involved therefrom.
4. Under the provisions of K.S.A. 60-456(d) testimony in the form of opinions otherwise admissible, given by a witness not testifying as an expert, is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the facts.
5. Jurors have the right, in appraising the evidence before them, to apply their common sense and to use the knowledge and experience which they possess in general with the rest of mankind.
6. The record is examined in an action to recover damages resulting from a fall down a set of steps and for reasons set forth in the opinion it is held the trial court erred in sustaining a motion to dismiss made at the close of the plaintiff's evidence and in entering judgment in favor of the defendant.
Gerald L. Michaud, of Michaud & Cranmer, Wichita, argued the cause, and Orval L. Fisher and Bradley Post, Wichita, were with him on the brief for appellant.
William A. Wells, of Lilleston, Spradling, Gott, Stallwitz & Hope, Wichita, argued the cause, and Ronald M. Gott, Wichita, was with him on the brief for appellee.
The plaintiff seeks to recover damages for personal injuries received when she fell down some steps leading from the Sears, Roeduck department store in Wichita. The trial court sustained the defendant's motion for dismissal made at the conclusion of plaintiff's evidence, and she has appealed.
The parties will be referred to as plaintiff and defendant, the status they occupied in the court below.
Mrs. Noland, the injured plaintiff, had purchased a power saw on a layaway plan as a Christmas gift for her husband. On December 8, 1967, accompanied by her two young sons and a friend, Katherine Blair, the plaintiff went into the Sears store to pick up her purchase, which was packaged in a large box approximately 8 1/2 11 1/2 14 inches and weighed some fifteen pounds. Upon leaving the store the plaintiff was followed by Mrs. Blair and the two boys. She proceeded to walk west along a concrete walkway running along the south side of the store, carrying the box in front of her, and headed toward her car which was parked southwest of the building in the customer pickup area.
As Mrs. Noland approached the steps at the west end of the walkway she turned around toward Mrs. Blair, and told her to be sure to take the boys' hands. Turning back, the plaintiff stopped a second and shifted the box toward one side to glance at the steps, after which she put the box back in front of her and started down the steps. As she took the first step she lost her balance and fell, injuring her knee. Further facts will be developed as the need arises.
The grounds of negligence on which Mrs. Noland relies, as shown by the pretrial order, were the defendant's failure to provide handrails, plus inadequate width of the treads and uneven height of the risers. The plaintiff alleges these defects violated provisions of the city building code adopted by ordinance and in effect on the date of her accident.
Three points are raised on appeal. The first two relate to the admissibility of certain evidence, while the third is whether there was sufficient evidence to require its submission to the jury. We will first take a look at the third point, since we deem it to be the most significant.
The rule to be applied in testing the sufficiency of evidence to withstand a motion for dismissal or for directed verdict, entered at the conclusion of the plaintiff's case, has been stated by this court many times. In Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P.2d 369, it was held:
'In ruling on a motion for a directed verdict all disputed factual questions and all inferences reasonably to be drawn from the evidence must be resolved in favor of the party against whom the motion is directed, and where reasonable minds might reach different conclusions thereon, the motion should be overruled and the case submitted to the jury.' (Syl. 1.)
Along this same line, we further said, in Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, 237, 447 P.2d 833, that the trial court is not to weigh evidence on a motion for directed verdict but must accept as true all facts which the evidence tends to prove, together with all inferences which are reasonably to be deduced therefrom in favor of the party against whom the motion is directed.
In the present case, the evidence is undisputed that the Wichita building code, effective at the time of plaintiff's fall, required that stairways be equipped with handrails on each side and, where the steps exceeded 88 inches in width, that intermediate handrails be installed dividing the stairway into portions not more than 88 inches wide. The code also limited the permissible variance both in the height of the risers and the slope of the treads from heel to toe. However, since plaintiff testified that she stumbled as she took her first step, and since the slope of the treads is not set out in the pretrial order as one of the grounds of negligence, we need no longer consider either of the latter code provisions or the alleged violations thereof. Accordingly, we shall limit our discussion to the contention that Sears was negligent in failing to provide handrails as required by the ordinance.
The stairway involved in this lawsuit was only two risers in height and varied somewhat in width because of an oblique retaining wall abutting one end. At the step-off point the width was seven feet, the second step going down measured seven feet, eleven...
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