Quinn v. Utah Gas & Coke Co.

• Citation: 42 Utah 113,129 P. 362
• Decision Date: 30 December 1912
• Docket Number: 2411
• Court: Supreme Court of Utah
• Parties: QUINN v. UTAH GAS AND COKE COMPANY

129 P. 362

42 Utah 113

QUINN v. UTAH GAS AND COKE COMPANY

No. 2411

Supreme Court of Utah

December 30, 1912

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by Mary Davis Quinn against the Utah Gas and Coke Company.

Judgment for plaintiff. Defendant appeals.

REVERSED AND REMANDED, WITH DIRECTIONS TO GRANT NEW TRIAL.

Stephens Smith & Porter for appellant.

Stokes & Bagley for respondent.

FRICK C. J. McCARTY and STRAUP, JJ., concur.

OPINION

FRICK, C. J.

Respondent brought this action to recover damages for injury to her wearing apparel, which she alleged was caused through the negligence of appellant while she was lawfully in its place of business. Respondent, in her complaint, after alleging that she was a customer of appellant, and that she, at the time of the accident and injury to her dress, was in its place of business to pay her gas bill, alleged appellant's negligence as follows:

That "at the particular time that the plaintiff called at the office of the defendant company . . . the defendant . . . negligently allowed and suffered to remain upon its counter, near the point where it received money from its patrons, an overturned ink bottle, from which ink had run onto the counter, and was dripping therefrom onto the floor. . . . While plaintiff was lawfully engaged in transacting the business with the defendant company, . . . a part of the contents of said ink bottle dripped from the said counter upon the plaintiff's dress, making large and unsightly blotches upon it." It was also alleged that said dress was of the value of $ 100, and that by reason of the ink stains thereon was rendered worthless, and that by reason of the loss of said dress, and for other reasons, plaintiff was damaged to the extent of $ 256.25, for which she prayed judgment.

The appellant interposed both a general and a special demurrer to the complaint, which were overruled. It is now urged that the complaint does not state a cause of action, in that it is not alleged therein that the appellant knew, or ought to have known, or had notice, that the ink bottle had been overturned, or that ink was dripping from the counter where respondent was required to pay her gas bill. It will be observed that all that is alleged in that regard is that the appellant "negligently allowed and suffered to remain upon its counter," etc., said overturned ink bottle, from which ink was dripping. We think that, in view of the duty that appellant owed respondent as hereinafter stated, the allegation was sufficient to permit her to prove that the ink had been spilled for such a length of time as ought to have apprised appellant of that fact. If such proof had been made, it would then have become a question for the jury to say whether, under all the circumstances, appellant ought to have warned respondent, and thus protected her against the consequences that might ensue from the dripping ink, and whether the failure to so warn her constituted negligence. True in making such proof it might also have been made to appear that respondent ought to have seen the dripping ink, and should have avoided it. This, however, in no way affects the sufficiency of her allegations. Whether she was also guilty of negligence or not in not avoiding the dripping ink would have been a question of fact for the jury, under all the facts and circumstances. We think the allegations of the complaint were sufficient in substance to permit the respondent to prove a prima facie case upon the question of appellant's negligence, and that was all that she was required to do.

It is also insisted that the court erred in overruling the special demurrer. The terms of that demurrer were so general that we do not feel inclined to review the ruling of the court thereon.

Appellant also insists that the court erred in overruling its motion for a nonsuit, and, further, in refusing its request to direct the jury to return a verdict in its favor for the reason that respondent had failed to prove that appellant was guilty of negligence.

It is only necessary to consider the last assignment. The undisputed facts developed at the trial are substantially as follows: The appellant is engaged in the business of manufacturing and distributing gas to its customers for domestic use; that respondent has been a customer of appellant since June, 1910, and from that time to the time of the acts complained of had frequently called at appellant's place of business to pay her gas bills; that on the 10th day of October, 1910, she went to appellant's place of business for the purpose of paying her gas bill; that on entering appellant's office some customers were already standing in line taking their turns in reaching the cashier's window to pay their gas bills; that respondent also fell in line, so that she might in turn reach the cashier's window, which was an opening in a wire screen or railing through which the customers paid their bills, to the cashier; that as the men who preceded respondent were paying their bills, and in approaching the cashier's window, she noticed what appeared to her like a blue pocket handkerchief or blue cloth lying on the shelf or ledge immediately to the left of the opening through which the cashier received the money; that after the men who preceded her had paid their bills, which took but a very short time, she approached the cashier's window to pay her bill, and in doing so laid her hand bag, or what she called her large purse, near to and immediately to the left of the cashier's window, and took from the large purchser small purse, and from the latter she took the money to pay the bill; that in paying the cashier she received back some change from him and placed the same into her small purse, which she replaced in the large one. We now give the remainder of her testimony in her own language, as the same is given in the printed abstract, which is as follows:

"When I took it up and looked at my gloves, they were all ink. I laid the purse right within the course of the ink, where the ink was running. I didn't see that there was anything running at the time I laid my purse down. I don't say that there was no ink running. I said I didn't notice any ink. I didn't see the bottle at the time I laid the purse down. I suppose the bottle was under it (the cloth). I am not positive I saw the bottle, although I think I did. . . . When I stepped up to the desk, I didn't see any ink running off. I didn't look. If anything had been running off there after I had looked at the cloth, running over the edge and dripping on the floor, I would have seen it, if it had been running down. I didn't even look down; always looked up. I don't know whether it was running before these men got out of the way. I know it was running off when it splashed my dress. Mr. Netzel was at a table to the right. He stepped forward and called my attention that there was ink running off the desk. . . . Before Mr....