S. H. Kress & Co. v. Maddox

• Decision Date: 08 March 1949
• Docket Number: Case Number: 33245
• Parties: S. H. KRESS & CO. v. MADDOX
• Court: Oklahoma Supreme Court

1949 OK 41

203 P.2d 706

201 Okla. 190

S. H. KRESS & CO. v. MADDOX

Case Number: 33245

Supreme Court of Oklahoma

Decided: March 8, 1949

Syllabus

¶0 1. NEGLIGENCE - Question of negligence within province of jury where there is competent evidence on the issue.

Where upon trial to a jury the question of defendant's negligence turns upon an issue of fact and there is competent evidence material thereto, the trial of such issue is within the province of the jury.

2. SAME - Admissibility of evidence of condition of floors an hour prior to accident.

Evidence that a floor was mopped within an hour prior to the time one fell thereon, and the effect was to make pools of oil upon the floor, is competent to be considered with other evidence in determining the condition of the floor existing at time of the fall.

3. TRIAL - Instruction on contributory negligence not erroneous because court failed on its own motion to instruct that evidence of plaintiff might be considered on issue.

An instruction on the issue of contributory negligence, in the absence of proper and timely request of counsel, is not erroneous merely because the court failed on its own motion to advise the jury that the evidence of the plaintiff might be considered in arriving at its conclusion on the issue.

4. SAME - Assumption of risk affirmative defense which must be pleaded unless issue raised by plaintiff's evidence.

Assumption of risk is an affirmative defense which defendant must plead unless an issue thereon is raised by plaintiff's evidence.

5. SAME - Knowledge of danger essential of defense of assumption of risk - Inapplicability of doctrine.

Knowledge of the danger is an essential of the defense of assumption of risk, and the doctrine does not apply unless the one alleged to have assumed the risk can be found to have known or to have been charged with knowledge of the danger.

6. SAME - Right of invitee to assume floor was suitable and safe to walk on.

One visiting a retail store for the purpose of shopping is an invitee to whom the proprietor owes the duty of maintaining the premises in a reasonably safe condition for use in accordance with the invitation and, in absence of knowledge to the contrary, the invitee has a right to assume that it is safe to walk on the floor of the store.

7. MASTER AND SERVANT - Verdict for servant, sued jointly with master, does not relieve master of liability, and instruction to return verdict for master properly refused.

It is not error to refuse to instruct the jury to return a verdict in favor of the master when the jury has returned a verdict in favor of servant, sued jointly, where it appears that other servants of defendant, not parties to the action, performed the alleged negligent acts.

8. TRIAL - Refusal to declare mistrial not erroneous where proof failed to show juror made unauthorized inspection of scene of accident.

It is not error to refuse to grant a mistrial for alleged misconduct of a juror when the misconduct is based upon a presumption that the juror made an unauthorized inspection of the scene of the accident and there is no proof to that fact.

Appeal from District Court, Carter County; John C. Caldwell, Judge.

Action by Jennie Maddox against S. H. Kress & Company, a corporation, and M.Q. Davis, its manager, for injuries received by the plaintiff in a fall upon the floor of corporation's retail store while a customer therein. From a judgment for plaintiff, defendant corporation appeals. Affirmed.

Earl Pruet, of Oklahoma City (Richardson, Shartel, Cochran & Pruet of Oklahoma City, of counsel), for plaintiff in error.

Shilling & Shilling and Ernest W. Tate, all of Ardmore, for defendant in error.

GIBSON, J.

¶1 This action was brought by Jennie Maddox, as plaintiff, against S. H. Kress & Company, a corporation, owner and operator of merchandise store in the city of Ardmore, Oklahoma, and M.Q. Davis, its manager, to recover damages for personal injuries sustained as the result of a fall upon the floor of defendant's store while shopping there. Trial was had to a jury which returned a verdict for plaintiff against the defendant corporation. The defendant corporation appeals.

¶2 For reversal defendant presents five propositions, as follows: that the trial court erred (1) in the admission of testimony; (2) in his instruction on contributory negligence; (3) in overruling defendant's demurrer to the evidence and refusing to instruct the jury to return a verdict in favor of defendant; (4) in refusing to instruct the jury to return a verdict in favor of defendant since the jury returned a verdict in favor of codefendant M.Q. Davis; and (5) in refusing to give defendant a mistrial because of the alleged misconduct of juror Ben G. Hunter.

¶3 In support of the first proposition it is contended that the admission of the testimony of witnesses Mr. and Mrs. Henry is error. They testified that they were shoppers in the store during the latter part of August; that the floor was heavily oiled, in fact, covered with oil, and there were puddles of oil on the floor; that a negro boy was spreading the oil out with a kind of apparatus; that on the same day and not more than an hour after they were in the store they heard that some one had fallen therein and that the newspaper, Ardmoreite, of that evening or the following evening, disclosed that Mrs. Maddox was the one who fell.

¶4 It is urged that this evidence is too remote in point of time and that it concerns a character of condition which is not within the rule that permits evidence of a condition within such time as will fairly tend to show the condition existing at the time of the accident. The court's attention is called to English v. Thomas, 48 Okla. 247, 149 P. 906, and other cases stating the rule, and emphasis is placed upon the fact that conditions there in contemplation were represented by a break in a step, rail or something of a permanent nature which would continue and therefore different from the condition of the floor herein which was temporary in its nature. The distinction sought to be made goes more to the weight of the evidence than its admissibility where it is pertinent to the issue because the governing principle is the same. In Great Western Coal & Coke Co. v. Cunningham, 43 Okla. 417, 143 P. 26, one of the cases cited and relied on, the court said:

"The limitation on the admission of such evidence is that it must be such, in character and point of time, as to justify the inference that the place was in a bad condition at the time of the accident."

And in the syllabus we held:

"Evidence of the condition of the place where the injury occurred, a reasonable time before the occurrence, is admissible as tending to show its condition at the time of the occurrence, especially where it is further shown that those conditions have not since changed."

¶5 By reason of its nature the condition testified to was admissible as tending to show the condition existing at the time of the fall and the weight thereof was a question for the jury to be considered along with the other evidence pertinent thereto.

¶6 Under the second proposition it is contended that the court erred in his instruction on contributory negligence and in refusing to give defendant's requested instruction on assumption of risk. Defendant...