Rogers v. J. C. Penney Company
| Decision Date | 20 November 1934 |
| Docket Number | 29020 |
| Citation | 257 N.W. 252,127 Neb. 885 |
| Parties | ETTA ROGERS, APPELLEE, v. J. C. PENNEY COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Antelope county: DE WITT C CHASE, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Storekeeper is not insurer against accident to customers, but must exercise reasonable care to keep premises reasonably safe for them.
2. Storekeeper who places racks of merchandise about a railing around a stairway to basement so as to obstruct the view of customers is negligent.
3. Storekeeper who does not guard a darkened or obscured stairway does not exercise reasonable care required for the safety of his customers.
4. Where the act or omission of a storekeeper creates the dangerous condition in violation of his duty to a customer knowledge is not a necessary element of negligence.
5. Instructions must be read and construed together to determine if they are prejudicially erroneous.
6. Failure to call back trial judge momentarily absent from bench may amount to waiver of misconduct of opposing counsel.
7. Where objection is made to argument of counsel and no record is preserved in the bill of exceptions, except conflicting affidavits filed in support of motion for new trial, the ruling of the trial court will be presumed to be correct .
8. " It is error for the judge to absent himself from the courtroom, out of the sight and hearing of the parties, during the argument of a case, unless by consent and agreement of the parties." Powers v. State, 75 Neb. 226, 106 N.W. 332, 121 Am.St.Rep. 801.
9. Where a trial judge is temporarily absent in a room adjacent to the courtroom during argument of counsel to the jury, without objection by the parties, and returns promptly for the purpose of hearing objections and making rulings, a judgment will not be reversed therefor, unless the record affirmatively demonstrates that the error was prejudicial.
Appeal from District Court, Antelope County; Chase, Judge.
Action by Etta Rogers against the J. C. Penney Company, Inc. Judgment for plaintiff, and defendant appeals.
Affirmed.
Deutsch & Young, for appellant.
Cowan & Grady and Hugh J. Boyle, contra.
Heard before GOSS, C. J., ROSE, EBERLY, DAY and PAINE, JJ., and REDICK, District Judge.
This is an action for damages by a married woman for personal injuries sustained from a fall down a stairway in defendant's store. Upon trial to jury a verdict of $ 2,500 was returned and judgment entered thereon. The defendant appeals.
The defendant, J. C. Penney Company, incorporated, operates a store at Neligh, Nebraska. On October 6, 1931, the plaintiff, Mrs. Rogers, entered the store as a customer. While looking at some dresses upon a rack, she fell down a stairway, suffering injuries, upon which this action is based. The plaintiff in her petition alleged that the defendant was negligent in a number of particulars, none of which related to the faulty construction or repair of the stairway. The allegation, which there is evidence to support, is that the stairway was hidden from view by dress racks and was dark so that it could not be seen by the plaintiff. The evidence is in conflict upon the questions of alleged negligence. The stairway in question led to the basement which was not lighted and not used as a salesroom to which customers were invited.
A storekeeper is required to maintain his store in a reasonably safe condition for customers. The customer is an invitee, and the owner of a store must exercise reasonable care to keep the building reasonably safe for his use, but is not an insurer against accident. Thompson v. Young Men's Christian Ass'n, 122 Neb. 843, 241 N.W. 565; Shorkey v. Great Atlantic & Pacific Tea Co., 259 Mich. 450, 243 N.W. 257; Smith v. The Emporium Mercantile Co., Inc., 190 Minn. 294, 251 N.W. 265; Evans v. Orttenburger, 242 Mich. 57, 217 N.W. 753. A stairway is not unusual in a store and must necessarily be maintained to pass from floor to floor. In the instant case, the defendant was negligent in obscuring the stairway by placing racks of merchandise about the railing so that it would be seen only from one direction. The stairway was placed lengthwise of the store against the side wall. It was covered by racks of merchandise from the front and side and only visible from the rear where a view of it was partially obscured by a counter for display of millinery. In this obscurement of the open stairway, the defendant was negligent. A storekeeper who places racks of merchandise about a railing around a stairway to a basement so as to obstruct view of customers is negligent.
The plaintiff also charged that the stairway was dark in addition to the obscurement. The evidence upon this question is in conflict, but is amply sufficient to require submission to the jury. The basement was dark, and the testimony of the plaintiff and another witness is that it was a dark hole. The plaintiff at the time of the accident was walking around a rack, set close to the railing of the stairway, looking at dresses hanging thereto. The absence of light, the shadows cast by the racks of merchandise next to the railing, the darkness of the rear of the store added greatly to the obscurement of the stairway. The defendant relies mostly upon the physical facts as to lights and a skylight to rebut the testimony of plaintiff in this respect. If the jury believed, as the evidence would justify them in finding, the conditions as described by the plaintiff's witnesses, "It was," as the court said in Lehman v. Amsterdam Coffee Co., 146 Wis. 213, 131 N.W. 362, "a trap or snare of whose existence under the circumstances the rules of ordinary care would require that an invited person be warned." See, also, Reese v. Abeles, 100 Kan. 518, 164 P. 1080; Cheifetz v. Hills, 86 Misc. 7, 148 N.Y.S. 103.
The rule is well stated in 45 C. J. 866, as follows: When we apply the rule of the authorities to the facts in the instant case, it is: A storekeeper who does not guard a customer from a darkened or obscured stairway does not exercise reasonable care for the safety of his customers. Hudson v. F. W. Woolworth Co., 275 Mass. 469, 176 N.E. 188; Kiser v. Skelly Oil Co., 136 Kan. 812, 18 P.2d 181.
As heretofore stated, this case does not involve a defect in construction or a defect caused by use. The negligence in this case involved the use of a properly constructed building in good repair. In such a case, the rule announced by this court in Broadston v. Beddeo Clothing Co., 104 Neb 604, 178 N.W. 190, and Thompson v. Young Men's Christian Ass'n, 122 Neb. 843, 241 N.W. 565, is not applicable here. The rule relative to the negligence alleged here is stated in 45 C. J. 653: "Knowledge of the defect or danger is not a necessary element of negligence where the act or omission, in and of itself, involves a violation of a duty * * * or where the negligent act or omission of the owner of the premises created the dangerous condition." Where, as here, the act or omission of a storekeeper, who violates a duty to a customer, creates the dangerous condition, knowledge is not a necessary...
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