Pushard v. J. C. Penney Co.
| Decision Date | 28 March 1968 |
| Docket Number | No. 11380,11380 |
| Citation | 151 Mont. 82,438 P.2d 928 |
| Parties | Carol PUSHARD, Plaintiff and Respondent, v. J. C. PENNEY COMPANY, Inc., a Corporation, Defendant and Appellant. |
| Court | Montana Supreme Court |
Alf C. Kremer and Rex F. Henningsen, Butte, Rex F. Henningsen (argued), Butte, for appellant.
Roe, Kiely & Joyce, Butte, Thomas F. Joyce (argued), Butte, for respondent.
This is an appeal from a verdict and judgment for the plaintiff in the amount of $7,908.85 entered in the district court at Butte, the Honorable James Freebourn, district judge, presiding with a jury.
The action arises out of injuries sustained by the plaintiff, Mrs. Carol Pushard, when she fell inside of the store of the defendant, J. C. Penney Co., Inc., at about 10:45 A.M., February 17, 1966.
The plaintiff testified that on the day of the accident she entered defendant's store by the main entrance on Park Street in Butte; she proceeded down the main aisle on the first floor; took the elevator to the second floor of the building and remained there for about fifteen minutes. While the plaintiff was in the store she was carrying her eight and one-half month old baby. The child weighed about nineteen pounds at the time of the accident, and as she fell she landed on top of the child. She further testified that in trying to get up she got some waxy substance on her hand and on the knee of her pants. When respondent was cross-examined she contradicted her statement on the reason why she fell, or at least raised some doubt as to why she fell. However, on re-direct examination plaintiff again testified that the reason she fell was that she slipped on the floor.
Defendant's janitor and maintenance man was called to testify for the plaintiff as an adverse witness. He said that the floor of the aisle where the accident occurred was treated with a liquid floor coating called 'Brulin-coat' the day before Mrs. Pushard fell. This product was applied by pouring it on the floor and spreading it out with a lamb's wool applicator. The janitor testified that in some places he got more 'Brulin-coat' on the floor than in other places, and that he sometimes used an electric buffer on the floor after the application of the floor coating, but that he did not use it after the application on the day before the accident because he did not have time.
Upon substantially these facts, the question of liability went to the jury. The defendant at the close of plaintiff's case made a motion for a directed verdict in favor of defendant which was denied. The defendant then chose not to present any evidence and rested its case. The jury was then instructed and both sides waived argument. The jury retired and later brought back the plaintiff's verdict and defendant appealed. The sole issue presented by the defendant for review is whether there was sufficient evidence to submit the case to the jury.
In reviewing the trial court's denial of the appellant's motion for a directed verdict this court views the evidence in the light most favorable to the respondent (plaintiff) as of the time that the motion was made for the directed verdict. McIntosh v. Linder-Kind Lumber Co., 144 Mont. 1, 393 P.2d 782; Johnson v. Chicago M. & St. P. Ry. Co., 71 Mont. 390, 230 P. 52. Here, the only evidence before the court and jury was that offered by the respondent (plaintiff). In view of these facts the trial court made its decision-that of refusing to grant appellant's motion.
Defendant claims that its motion for a directed verdict should have been granted because:
(1) There is no substantial evidence that the floor was excessively slippery, hazardous or dangerous to walk upon, i. e., no proof of a dangerous condition, and;
(2) There was no showing that even if the floor of the store was slippery that this condition caused the plaintiff to fall because (a) there is no...
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...581, 454 P.2d 1016, 1021 (1969); Shutt v. Kaufman's, Inc., 165 Colo. 175, 180, 438 P.2d 501, 503 (1968); Pushard v. J. C. Penney Company, 151 Mont. 82, 85, 438 P.2d 928, 929 (1968); Safeway Stores, Incorporated v. Keef, Okl., 416 P.2d 892, 894 (1966); Glover v. Montgomery Ward and Company, ......
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...(3) Only the evidence of the plaintiff will be considered.' See also: Pickett v. Kyger, 151 Mont. 87, 439 P.2d 57; Pushard v. J. C. Penney Co., 151 Mont. 82, 438 P.2d 928; Solich v. Hale, 150 Mont. 358, 435 P.2d 883; Gerard v. Sanner, 110 Mont. 71, 103 P.2d Here, viewing the evidence in the......
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...was 'obvious'. Here, there is a question raised as to whether negligent acts created a dangerous condition. In Pushard v. J. C. Penney Co., 151 Mont. 82, 85, 438 P.2d 928, 929, we said the question of liability is a jury question when 'Whether the premises were in a reasonably safe conditio......