Picman v. Higbee Co.

• Decision Date: 15 May 1935
• Citation: 54 Ohio App. 55,6 N.E.2d 21
• Parties: PICMAN v. HIGBEE CO.
• Court: Ohio Court of Appeals

6 N.E.2d 21

54 Ohio App. 55

PICMAN v. HIGBEE CO.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

May 15, 1935

Syllabus by the Court.

1. A court, in passing upon defendant's motion for judgment on plaintiff's opening statement in a negligence case, need not consider the specifications of negligence incorporated in the opening statement but not contained in the petition, or facts charged in the opening statement not tending to support the allegations of the petition.

2. It is a matter of common knowledge that when the temperature of the weather is below freezing and there is snow upon the streets and sidewalks of a city, such snow, when carried into the front of a store which is heated to a temperature of seventy degrees or more, will drop from the footwear of patrons entering the store and be deposited on the floor near the door where it will melt; that such deposits and melting will continue so long as there is no material change in interior and exterior conditions and so long as people continue to pass into the store, and incoming patrons are charged with notice of this condition as well as the owner or lessee of the premises, and no cause of action will accrue in favor of a later incoming patron who slips or falls in such place, sustaining injury.

3. Where, in a negligence action by a customer against a storekeeper to recover for injuries sustained when slipping on a platform at the head of stairs, made slippery by slush and snow dropped from shoes of customers, counsel for plaintiff, in his opening statement, charged that by reason of the fact that a large number of people were on the stairs plaintiff did not and could not see the last foot or two of the platform at the head of the stairway which she was approaching, reasonable minds can reach no other conclusion than that she did not see the platform at the head of the stairway, and was contributorily negligent as a matter of law in proceeding to the stairway without observing the approach to it, and that such negligence was the proximate cause of her injuries.

Harrison & Marshman, of Cleveland, for plaintiff in error.

Howell, Roberts & Duncan, of Cleveland, for defendant in error.

GUERNSEY Judge.

This is an action for personal injuries, instituted in the court of common pleas of Cuyahoga. A motion by defendant for judgment upon the opening statement of counsel for plaintiff was granted by the common pleas court and judgment entered for the defendant. The case is before this court on petition in error under the old appellate procedure. The parties stand before this court in the same relation as they did in the trial court and for convenience will be referred to as plaintiff and defendant.

The petition in the case, omitting the formal parts, is as follows:

‘ Now comes the plaintiff and says that the defendant is a corporation organized and existing pursuant to law and engaged in owning and operating a large building at the Public Square, Cleveland, Ohio, which building is devoted to carrying on a mercantile business.

‘ On or about the 20th day of February, 1934, and about noon plaintiff entered the defendant's store building pursuant to its invitation to members of the general public, to trade at said store, and had entered said store through its entrance way on Ontario street north of its intersection with Prospect street, and had left the platform from which a stairway led down, when by reason of the recklessness and negligence of the defendant in permitting a slippery condition to exist on said platform and stairway plaintiff was caused to slip, stumble and fall, suffering the injuries more fully hereinafter set forth.

‘ Plaintiff says that at the time herein referred to the defendant caused and permitted an accumulation of slippery slush to be and exist on said platform and stairway and that defendant was careless and negligent in the following respects:

‘ (1) In failing to remove said slippery condition and in failing to remove said slush.

‘ (2) In failing to provide for the plaintiff as a customer of said store a reasonably safe entrance way.

‘ (3) In failing to provide mats or sand or other abrasive substances after it knew or had reasonable grounds to believe that said entrance way was slippery.

‘ (4) In failing to warn the plaintiff of the dangers incidental to said slippery condition in said entrance way.

‘ As a direct and proximate result of defendant's negligence plaintiff was thrown down and suffered the following injuries: She suffered severe bruises and contusions in the region of her left leg, right hand, right arm and right shoulder. Her back was twisted and the ligaments and supporting structures thereof torn. By reason of the violence of said fall she suffered abdominal injuries which she cannot describe other than by saying that she has suffered pain internally after said accident and her uterus was torn and injured, and it is reasonably certain that she will be required to undergo an abdominal operation for the repair of said conditions. She suffered a profound shock to her entire central nervous system, has been rendered sleepless and nervous and it is reasonably certain that she has been permanently impaired in her ability to perform her household duties, and that she will continue to suffer pain and discomfort in the future.

‘ Wherefore, plaintiff says that she has been damaged in the sum of fifteen thousand dollars, for which sum and her costs she prays judgment.’

In its answer the defendant admits its corporate existence and the nature of its business, as alleged in the petition, and that on or about the time alleged in the petition, the plaintiff claims to have fallen while entering the defendant's store; but the defendant has no knowledge with reference to the plaintiff's claim in this respect, and the defendant says that if the plaintiff did fall and receive any injuries, the same were not caused on account of any negligence on the part of the defendant; and the defendant therefore denies each and every other allegation contained in the petition not herein specifically admitted to be true.

The opening statement of counsel for plaintiff is in the words and figures following, to wit:

‘ Mr. Harrison: If the court please, and ladies and gentlemen of the jury:

‘ In this case the evidence will show the following facts:

‘ Marie F. Picman, the plaintiff, is a married woman of middle age, and on February 20, 1934, about noon, had occasion to go to the defendant's store, The Higbee Company store, on the Public Square.

‘ The Higbee Company is a corporation, and on February 20, 1934, and for many years Before, had been in the retail business in the city of Cleveland, and maintained a store at the corner of Ontario and Prospect on the Public Square.

‘ The evidence will show that February 20 was a very cold day, that the thermometer ranged from two or three above zero to about ten above zero at noon, and that the streets throughout the city of Cleveland were covered with a deep blanket of snow two or three inches in depth everywhere; that it had snowed most of the day preceding, the 19th, but had not snowed at all on the 20th.

‘ The evidence will show that the doors of the store were opened at 9:00 o'clock in the morning and the public invited to enter that store for the purpose of trading and making purchases of its merchandise, and that pursuant to that invitation the plaintiff entered the store as a business guest to make certain purchases of merchandise.

‘ The evidence will show that the Ontario entrance was the entrance way that she entered the store at, and that that consisted of a revolving door at the property line; that is to say, as one comes up the public sidewalk from Prospect avenue we enter through this revolving door, and then entering that revolving door we come upon a platform which was eight feet wide and about twenty-five or thirty feet in length; that the floor of this marble platform was smooth, and made of a marble tile, and in such a fashion that the floor was quite smooth, and when wet was exceedingly slippery.

‘ The evidence will show that during the forenoon of this day customers, and a great many of them, had been entering by that door of the entranceway, and had dragged a considerable quantity of snow in on their feet on this platform which had a marble floor, so that it was covered...