Ong v. Pacific Finance Corp. of Cal.

• Decision Date: 09 October 1950
• Docket Number: No. 5154,5154
• Citation: Ong v. Pacific Finance Corp. of Cal., 70 Ariz. 426, 222 P.2d 801 (Ariz. 1950)
• Parties: ONG et al. v. PACIFIC FINANCE CORP. OF CALIFORNIA et al.
• Court: Arizona Supreme Court

Page 801

222 P.2d 801

70 Ariz. 426

ONG et al. v. PACIFIC FINANCE CORP. OF CALIFORNIA et al.

No. 5154.

Supreme Court of Arizona.

Oct. 9, 1950.

Richard H. Chambers, of Tucson, for appellants.

Darnell, Robertson & Holesapple of Tucson, for appellees.

PHELPS, Justice.

The facts in this case are that the Pacific Finance Corporation of Caligornia (hereinafter called the company) is a small loan concern engaged in business at 53 East Broadway, Tucson. Its office is located on the ground floor and occurpies a space of approximately 30 x 65 feet. There is a counter in the office 8 to 10 feet south of the front door. This counter is 30 inches wide and extends about 15 feet from the west wall of the office. At the east end of the counter a railing extends south almost to the south wall completing the office enclosure. Appellee E. H. Taylor is manager of the Loan Department of the company and is lessee of the premises occupied by it.

At the entrance to the office a cement ramp has been constructed extending one and a half to two feet out on the sidewalk with an incline of about 25 degrees. This ramp is covered with a rubber matting. The ramp was evidently constructed to take care of a slight elevation of the office floor above the sidewalk. The floor of the entire office is covered with rubberized linoleum. This rubberized linoleum is treated with Johnson's paste wax every month or six weeks. It is put on by a rotary machine made for the purpose of waxing floors. At other times only a broom or push broom is used by the janitor in taking care of the floor. He uses no sweeping compound of any kind. Neither does he use any water.

The appellant is a young Chinese woman in her late 20's weighing 170 to 180 pounds.

On Saturday March 22, 1947 at the request of the company appellant went to its office just before it closed at noon to take care of a past due installment on a small note she had executed in its favor.

There are two windows on the front counter of the office where these payments are received and it was to one of these windows that appellant was proceeding when she fell and injured her left knee. She testified she opened the front door and stepped inside. She is sure she did not fall when she took her first step, and believes it was the second or third step that she fell or it might have been the fourth step; that she fell on her right side and that her head was near the first customer window; that she felt a slippery substance either water or wet wax (under her feet); she did not see either water or wet wax at the point on the floor where she fell but did see a substance near the window like water. She then said: 'There was little puddles of water there.' There is nothing definite in the record indicating how far these puddles of water were on the floor from where appellant slipped and fell. The floor had been waxed approximately a week before the date appellant fell and the manager stated that the wax film would wear off in three days after its application. The traffic on the floor at this particular point where plaintiff fell was heavy and especially on Saturdays when fifty to seventy-five persons were waited on by the different departments during the morning, 65% to 75% of whom were waited on at one of these two windows, thus necessitating the use of the floor space between the front door and one or the other of the two customer windows on the front counter.

At the close of the case on motion of the defendants the trial court instructed a verdict for the defendants. From this order and from the judgment entered thereon and from the order denying a motion for a new trial an appeal is prosecuted to this court.

Appellant assigns as error:

1. The trial court erred in directing a verdict and entering a judgment thereon in favor of the defendants for the reason that there was sufficient evidence in the record from which a jury could reasonably have found defendants guilty of negligence and consequent injury therefrom.

2. That the trial court erred in denying plaintiff's motion for a new trial for the same reasons.

3. The trial court erred in refusing to permit plaintiff to make a demonstration of Johnson's wax in the presence of the jury for the purpose of comparing her sensation of feeling at the time she fell, with the sensation of feeling produced by the test.

We do not think there is any merit to appellant's third assignment of error. In the first place there is no evidence whatever that any servant of the company had placed any of Johnson's wax on its floor for approximately a week immediately prior to appellant's injury. Secondly that an inspection made by the manager immediately after the accident showed no evidence of fresh or wet wax or the presence of water at the point where appellant slipped and fell. Appellant admitted that she saw neither water nor wet wax at that point. The fact that she may have seen water or wet wax near the window is no evidence of there having been any of either at the point where the accident actually occurred. The proposed demonstration of pouring Johnson's wax on the floor and rubbing her foot in it therefore would have borne no resemblance to the condition of the floor at the spot in the office of the company where appellant slipped and fell. Such a demonstration would in fact have constituted reversible error under the circumstances. In order to admit such evidence the condition produced must be shown to be substantially the same as that existing at the time of the accident which condition it is claimed caused such accident and upon which the negligence of appellee is based. Although the facts are entirely different this principle is enunciated in Choctaw Electric Co. v. Clark, 28 Okl. 399, 114 P. 730. This appears to be the universal rule. See also Montgomery Ward & Co. v. Wright, 70 Ariz. 319, 220 P.2d 225, and cases cited therein.

Assignments of error 1 and 2 are based upon the ground that the evidence relating to the negligence of appellees was sufficient to require that question to be submitted to the jury.

In order to determine this issue it is necessary to refer to the transcript of the evidence.

As above pointed out the evidence of appellee is undisputed that the waxing of appellee's floor was done prior to March 18th and possibly prior to March 11th; that at the point where appellant fell the floor had been walked upon daily by many people; that immediately after the accident an inspection of the floor at that point was made by the manager and that he found no foreign matter on the floor.

Appellant testified with respect to the point where she fell: 'Well, all I know it was slippery.' Again: 'It was slippery.' And again: 'It was a slippery substance either water or wet wax.' When asked by counsel for appellee on voir dire: 'Which of the members of your body were you using at the time in order to detect that feeling? In other words, did you feel it with your hand, with your foot or what?' and she replied: 'Well, when I walked in, the floor was slippery, that is what it felt like.' She further stated that the only reason she had for saying it felt like water or wet wax was the sensation she felt through her shoe.

'Q. You didn't see it with your eyes? A. Well, I saw a substance near the window there, it was something like water. There was little puddles of water around there.

'Q. But that was not where you slipped? A. Well, it was all around there, but I didn't feel any.

'Q. You didn't see anything in the vicinity of the spot where you fell? A. I don't know if it was in that vicinity where I fell down or not. I was in no state of mind to see at that time, I was too much in pain.

'Q. When was it that you saw the puddles around the front of the window? A. There was two gentlemen, I don't know who they were, that picked me up and seated me on a chair there. That is when I noticed it.'

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'Q. But you didn't see any back in the center of the room where you fell? A. No, I didn't notice it there.'

Counsel admits that appellant's testimony taken alone is insufficient to take the case to the jury but argues that when supplemented by the testimony of appellee Taylor and the witness Charouleau appellant established probative facts from which negligence and the causal relation may be reasonably inferred and under the rule laid down in Apache Railway Company v. Shumway, 62 Ariz. 359, 158 P.2d 142, 159 A.L.R. 857, the question should have been submitted to the jury.

He argues that because the witness Charouleau...