Pement v. F. W. Woolworth Co.

• Decision Date: 26 March 1959
• Docket Number: No. 34750,34750
• Citation: 337 P.2d 30,53 Wn.2d 768
• Parties: Lillian PEMENT and Philemon Pement, her husband, Appellants, v. F. W. WOOLWORTH CO., a corporation, Respondent.
• Court: Washington Supreme Court

Page 768

53 Wn.2d 768

337 P.2d 30

Lillian PEMENT and Philemon Pement, her husband, Appellants, v. F. W. WOOLWORTH CO., a corporation, Respondent.

No. 34750.

Supreme Court of Washington, Department 2.

March 26, 1959.

Kennett, McCutcheon & Soderland, Seattle, for appellants.

Ogden & Ogden, James A. Murphy, Seattle, for respondent.

FOSTER, Judge.

In this personal injury action, ¹ appellants, husband and wife, plaintiffs below, appeal from a judgment for the defendant upon the defendant's verdict, and assign error upon the giving of two instructions and the denial of their motion for new trial upon the same ground.

Appellant wife sued to recover for the damages she sustained as a result of a fall in the respondent's store in Wenatchee, Washington. The complaint alleged that the fall was caused by a slippery spot on the floor which was the result of the respondent's negligent application of a floor preparation called 'Myco-Sheen.' The respondent denied the pleaded negligence and alleged that the floor preparation was properly applied and that it had no lubricating qualities, but that, on the contrary, it promptly evaporated.

Upon the issue of negligence, the evidence sharply conflicted. Respondent's testimony was that no Myco-Sheen had been applied for a minimum of two weeks prior to the injury. While there was testimony of the presence of cracks between the floor boards and that the floor was porous, nevertheless there was a complete absence of any testimony that the floor compound was absorbed and oozed out on pressure, although the appellant claims that this was a legitimate inference.

The first instruction complained of is as follows:

'You are instructed that the presence of a slippery condition, if any, or the fact that plaintiff fell, or that she was seriously injured would not of themselves warrant a recovery by the plaintiff.

'Before plaintiff is entitled to recover you must be satisfied, by a fair preponderance of the evidence, that the defendant, when it treated the floor, left on it an excess quantity of Myco-Sheen or other liquid, that such excess quantity of liquid, if any, created a dangerous condition, that it remained upon the surface of the floor and was there at the time that plaintiff fell, and that it was such excess quantity of liquid, if any, that caused the plaintiff to fall.'

Appellant's exception was twofold: Respecting the first paragraph of the instruction, it is said that it withdrew from the jury the right to find negligence from the slippery condition of the floor; it is argued that the second paragraph of the instruction withdrew from the jury the right to find liability unless the excess substance remained on the floor at all times, which precluded the jury from finding negligence if the floor preparation oozed out upon pressure.

Appellant's argument on the first phase of the exception is that the 'mere presence of a slippery condition is negligence.' The trial court correctly ruled that such was not the law.

Firmly embedded in the decisional law of this state is the principle that the slippery condition of a floor does not prove negligence. We said in Kalinowski v. Y. W. C. A. Ass'n, 17 Wash.2d 380, 135 P.2d 852, 858:

'* * * Furthermore, negligence is not proven by showing that the floor had been waxed and as a result was slippery. * * *'

Our other cases are: Hendrickson v. Brill, 45 Wash.2d 766, 278 P.2d 315; Hanson v. Lincoln First Federal Savings and Loan Ass'n, 45 Wash.2d 577, 277 P.2d 344; Mathis v. H. S. Kress Co., 38 Wash.2d 845, 232 P.2d 921; Knopp v. Kemp & Hebert, 193 Wash. 160, 74 P.2d 924; Chilberg v. Standard Furniture Co., 63 Wash. 414, 115 P. 837, 34 L.R.A.,N.S., 1079. The cases in other jurisdictions are in accord. ²

The arguments on the second phase of the objection are that the jury was precluded from finding liability unless the excess of the floor preparation remained on the floor at all times, and that it withdrew from the jury the right to find liability upon the ground that the floor was porous and absorbed the floor preparation which oozed out under the pressure of people walking on it. In ruling upon the exception, the trial court observed:

'I don't believe there was any evidence there was a condition in the floor itself which would cause that liquid put there to go in and out of cracks as people walked over them. That would be speculation, would it not?'

The record fully justifies this comment.

Moreover, instructions must be taken as a whole. ³ Appellant's argument completely overlooks instruction No. 5, which is as follows:

'A storekeeper owes to its business invitees a duty to use ordinary care to make the floor of the store reasonably safe for their use, that is, to maintain the floor in such a condition as a reasonably careful and prudent storekeeper would deem sufficient to protect them from danger while exercising ordinary care for their own safety.'

The court plainly told the jury that the respondent owed the appellant a continuous duty to maintain its floor in a safe condition.

The court instructed upon unavoidable accident, to which the appellant excepted and now assigns error upon the giving of the instruction and the refusal to grant a new trial upon this ground. Appellant does not argue...