Ogden v. Libby

• Decision Date: 03 December 1963
• Citation: 159 Me. 485,195 A.2d 414
• Parties: Arthur OGDEN v. Reginald W. LIBBY et al.
• Court: Maine Supreme Court

Page 414

195 A.2d 414

159 Me. 485

Arthur OGDEN v. Reginald W. LIBBY et al.

Supreme Judicial Court of Maine.

Dec. 3, 1963.

John J. Harvey, Biddeford, for plaintiff.

Julian G. Hubbard, Portland, Hilary F. Mahaney, Biddeford, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY SULLIVAN, SIDDALL and MARDEN, JJ.

WILLIAMSON, Chief Justice.

This is an action by the plaintiff, a customer in defendants' hardware store, to recover for injuries sustained in falling through an opening in the floor. The case is before us, after a jury verdict and judgment for the plaintiff, on appeal from denial of defendants' motion for entry of judgment n. o. v., or in the alternative for a new trial. Under the familiar rules the verdict stands unless manifestly wrong and we take the evidence in the light most favorable to the successful party. Neal et al. v. Linnell, 156 Me. 1, 157 A.2d 231; Fossett et al. v. Durant, 150 Me. 413, 113 A.2d 620.

The jury could have found as follows:

The plaintiff entered the defendants' store to purchase a spade. On inquiry to this end, he was directed to a display of garden tools including spades and shovels hanging on the store wall by one of the defendants who was seated at a desk. The plaintiff saw the display of tools and, to use his words, 'what appeared to be paper on the floor under them.' He started toward the display, stepped on what he believed to be the floor covered with white paper and fell into the cellar with resulting serious injuries. In fact, he stepped in a stair well covered by the defendants with white canvas 'to keep the wind out.' The stairway had been removed or had fallen in the course of repairs to the building. There were no signs or warnings of an opening in the floor. The area was, however, guarded or 'blocked' or 'barricaded,' on one side by the wall and on two sides by plywood strips four feet in height.

With reference to the fourth side from which the plaintiff approached the wall, the evidence was in sharp conflict. The evidence offered by the defendants was to the effect that they had placed a heavy chain rack and cartons of merchandise in position to block the stair well, and that anyone 'would have had to go over the wall of the enclosure' to reach the display of tools. The plaintiff denied that he moved a chain rack or that his approach to the wall was barred in any way. The jury was entitled to accept the plaintiff's evidence of these critical facts.

After the plaintiff started for the shovel, he did not look again at the floor. In his words, 'I couldn't have. I had my mind on that shovel.'

The defendants argue that the accident could not have happened in the manner described by the plaintiff. They place, however, too much reliance upon exactness in detail; for example, the distance between desk and wall or opening, or the exact course of the plaintiff on approaching the display. It is not surprising that the plaintiff's testimony does not meet tests of mathematical precision. The entire action from the time that the plaintiff turned to the display on the wall to the fall through the opening in the store floor covered only moments.

The plaintiff was a customer in the defendants' store. His status as an invitee to whom the defendants owed a duty of due care is not in issue. Indeed, the defendants do not--and understandably so--question the sufficiency of the evidence to establish their negligence.

A major point on appeal touches contributory negligence of the plaintiff. It is urged that the failure of the plaintiff to look at the floor from the time he started toward the display on the wall was negligence as a matter of law. With this view we do not agree.

The failure of the plaintiff to look at the floor was of course a fact of importance, but it was not controlling. A storekeeper attracts customers not only into his store but as well from place to place within the doors by display of merchandise. To require as a matter of law that a customer must keep watch every moment on the condition of the store floor would create a standard beyond that of our common experience. We do not have here the case of an open stairway suitably indicated to a customer, but an opening in the floor covered only with canvas at a place to which the customer was attracted by a display and was indeed specifically directed. It was for the jury to determine whether the plaintiff met the standard of the reasonably prudent man under the circumstances. We cannot say the jury erred as a matter of law in placing liability on the defendant. Temple v. Congress Square Garage, Inc., 145 Me. 274, 75 A.2d 459; Shaw v. Piel, 139 Me 57, 27 A.2d 137; Bingham v. Marcotte, Cote & Company, 115 Me. 459, 99 A. 439; Holmes v. Clear Weave Hosiery Stores, 95 N.H. 478, 66 A.2d 702; Grogan v. O'Keefe's, Inc., 267 Mass. 189, 166 N.E. 721; Annot. 66 A.L.R.2d 376; Restatement, Torts § 343; 2 Harper & James, Torts § 27.13, p. 1491, note 11.

The defendants also attack the verdict of $9850 on the ground that damages were erroneously assessed. They contend (1) that the proof of $807 for medical expenses was based only on the plaintiff's testimony without introduction of the doctors' bills; (2) that the plaintiff did not establish whether $490 of the total medical expense was in whole or in part for treatment of a condition existing prior to the accident; and (3) that in seeking and obtaining...