Price v. T.P. Taylor & Co., Inc.

• Decision Date: 07 June 1946
• Citation: 302 Ky. 736,196 S.W.2d 312
• Parties: PRICE v. T. P. TAYLOR & CO., Inc.
• Court: Kentucky Court of Appeals

196 S.W.2d 312

302 Ky. 736

PRICE v. T. P. TAYLOR & CO., Inc.

Court of Appeals of Kentucky

June 7, 1946

Rehearing Denied Oct. 1, 1946.

Appeal from Circuit Court, Common Pleas Branch, First Division Jefferson County; Joseph J. Hancock, Judge.

Action by Ina Price against T. P. Taylor & Co., Inc., to recover damages for personal injuries sustained in defendant's drug store allegedly as a result of negligence of defendant. From a judgment entered upon a directed verdict in favor of defendant, plaintiff appeals.

Judgment affirmed.

Julius Leibson, of Louisville, for appellant.

Oldham Clarke, James M. Cuneo, and Allen, McElwain, Dinning, Clarke & Ballantine, all of Louisville, for appellee.

LATIMER Justice.

Ina Price, plaintiff below, appellant here, brought action against T. P. Taylor & Company, Incorporated, asking damages for personal injuries, allegedly caused by the negligence of the defendant.

The defendant operated a drug store on the Bardstown Road in Louisville. A soda fountain extended along one side of the store, about which were 15 or 16 stools, situated about 23 inches apart. The stools were approximately 30 inches high and measured 30 inches across the top. A foot railing 10 inches high and 10 inches in width ran around the base of the fountain and the stools were set back 7 inches from this railing. The seat of one of the stools, the third or fourth from the end, was broken and had been removed which left only the stem. This stem was approximately 28 inches high and had a triangular top about 2 1/4 inches on each side. Five 300 watt lights were situated over the soda fountain, all of which were burining at the time of the accident.

On the 15th of December, 1943, late in the afternoon, the plaintiff who was suffering from a cold, entered the drug store to purchase some castor oil in root beer. She placed her order at the fountain and walked over to the merchandise department to purchase some Kleenex. The counter from which she purchased her Kleenex was about 18 feet from the soda fountain. After purchasing the Kleenex, she returned to the soda fountain where the fountain clerk was preparing her castor oil in root beer. She asked the clerk to put some more castor oil in the root beer, and while waiting for this she undertook to sit down, and in so doing sat down on the stem of the stool from which the seat had been removed. She hit her coccyx bone on the stem of the stool and fell to the floor and hit the end of her spine on the base or pedestal of the stool, thereby causing the alleged injuries.

The cause went to trial and at the conclusion of plaintiff's proof, defendant made motion for directed verdict, which was overruled. At the conclusion of defendant's proof, the motion for a directed verdict was renewed, which was sustained. The court held that appellant's case should be dismissed because she was guilty of contributory negligence as a matter of law. Plaintiff prosecutes this appeal.

Appellant alleges two grounds for reversal--that the trial court erred first, in rejecting competent evidence, and, second, in sustaining appellee's motion for peremptory instruction.

Appellant admits that it will not be necessary to consider ground (1) unless ground (2) is sustained. Consequently, we shall discuss ground (2) first.

Appellee in brief insists that there was no evidence of negligence on the part of appellee; that appellant was contributorily negligent as as matter of law, and consequently, the peremptory instruction was proper.

The appellant is strongly insistent that it was error to impose on the appellant the absolute duty to look at the particular seat in order to ascertain its condition before she sat down, and that under our authorities the question as to whether or not she exercised ordinary care for her own safety was a matter for the jury to consider. He cites in support of that position a number of cases, most all of which have to do with obstructions or defects in the floor.

The appellant stated in substance that she had a cold, and after placing her order for the castor oil, she purchased some Kleenex, after which she walked back to the counter to get the order, and that as she walked toward the counter she had the Kleenex to her nose but she noticed the stools there more from a casual inspection, and that when she started to take the castor oil she sat down presuming the seat was right behind her. On cross-examination she testified that she took a casual glance and noticed a row of seats but didn't examine them to see that all the seats were on the stools and 'my eyes were on the counter and I was thinking about the castor oil and didn't examine the stool to see if it was in perfect order. I presumed the seat was there.' She testified that the building was well lighted. She was then asked this question: 'There was nothing to conceal the fact that the seat wasn't there from you, was there?' Answer: 'No sir, other than it was kind of under the counter like and it wasn't real bright there.'

The court below, in its opinion, analyzed the facts as follows 'The lady says she went into the store, and if she had looked she could have seen that the seat wasn't there; that there wasn't anything there to prevent her from seeing it if she had looked. Now, under a set of facts of that kind, where the lady herself admits that she didn't look and just sat on something that wasn't there,--to my mind the law doesn't imposed any liability upon the T. P. Taylor & Company. This lady is guilty, as I understand the law, of contributory negligence and by reason of her contributory negligence she has contributed to her own injury,...