Safeway Stores, Inc. v. Whitehead
| Citation | 1942 OK 169,125 P.2d 194,190 Okla. 464 |
| Decision Date | 28 April 1942 |
| Docket Number | Case Number: 30346 |
| Parties | SAFEWAY STORES, Inc., v. WHITEHEAD |
| Court | Supreme Court of Oklahoma |
¶0 1. NEGLIGENCE--Action for injuries sustained by customer in fall on floor of store-Evidence of oily and slick condition of floor and of manner of customer's fall held sufficient to present issue of negligence to jury.
In an action by a customer against a storekeeper for injuries sustained in a fall on the floor of the store, evidence that the defendent oiled the floor 36 hours before the injury; that the floor where plaintiff fell was oily and slick; that the customer while walking in an ordinary manner slipped and fell and there were marks on the floor where it could be seen that the customer's heels had slipped in the oil, the evidence was sufficient to present the issue of negligence of defendant to the jury.
2. NEGLIGENCE -Assumption of risk an affirmative defense which must be pleaded.
The defense of assumption of risk is affirmative in nature, and in order to be available upon the trial such defense must be expressly pleaded by defendant.
3. APPEAL AND ERROR--Harmless error Improper argument by counsel for plaintiff.
Improper argument by counsel for the plaintiff, while not to be condoned, does not call for a reversal of a verdict for plaintiff where it reasonably appears from the whole record that the jury was not influenced thereby, and apparently followed directions of the court not to consider such improper argument.
Appeal from District Court, Hughes County; Tal Crawford, Judge.
Action for damages for personal injuries by Mary Whitehead against Safeway Stores, Inc. Judgment for plaintiff, and defendant appeals. Affirmed.
Rittenhouse, Webster, Hanson & Rittenhouse, of Oklahoma City, and Anglin & Stevenson, of Holdenville, for plaintiff in error.
Harold Skinner and Paul Ballinger, both of Holdenville, for defendant in error.
¶1 This is an appeal from a judgment of the district court of Hughes county in favor of defendant in error, herein referred to as plaintiff, against plaintiff in error, herein referred to as defendant.
¶2 The action was brought by plaintiff to recover damages for personal injuries alleged to have been caused by her falling on the floor of a store owned and operated by defendant at Holdenville, Okla. The basis of plaintiff's claim was, as she alleged, negligence of defendant in having oil on the floor of its store building. The particular acts of negligence alleged were:
"That defendant carelessly and negligently used an excessive amount of oil on the floor of its building . . . ; that defendant was careless and negligent in allowing an excessive amount of oil to remain on the floor."
¶3 The defense was a general denial. On appeal the defendant presents several propositions.
¶4 The first proposition is that the evidence is insufficient to show actionable negligence on the part of defendant.
¶5 Plaintiff testified that she went into the company's store about 9 o'clock Monday morning, accompanied by her daughter and son-in-law, for the purpose of purchasing groceries, and while walking along one of the aisles of the store her foot slipped and she fell to the floor breaking her hip; after she fell she noticed oil on her dress where it covered her hip. She testified at length concerning the pain she suffered. The nature and extent of plaintiff's injuries are not in controversy. Plaintiff's daughter was not at the place where plaintiff fell. The daughter was a witness for plaintiff and testified in substance that after they entered the store she separated from plaintiff and left her standing at the fruit counter; that she heard a noise and turned around and saw her mother lying on the floor; that she went to her assistance, and while there she noticed the condition of the floor where plaintiff fell; that "it was very oily there." She saw marks on the floor and said, ; that plaintiff's dress was oily at the place where she went down on her hip.
¶6 Plaintiff's son, Jack Whitehead, testified that he went to the defendant's store in company with plaintiff's daughter within an hour after plaintiff had been taken to the hospital; that the place where plaintiff fell was pointed out to him and the floor at that place was "oily." His description of the marks on the floor was substantially the same as that of plaintiff's daughter. The same day he had a conversation with Mr. James Frazier, the manager of the store, in which Frazier told him he had oiled the floor on the Saturday night before and that they hadn't had time to go over the floor again.
¶7 The evidence of defendant was that it had oiled the floor on Saturday night before the injury; that the floor had about 2,400 square feet, and about two and one-half gallons of oil were used, which, according to calculations made, was about one ounce of oil to about seven and three/tenths square feet of floor space if evenly applied; that they used an ordinary floor mop to spread the oil; that they did not go over the floor with a mop after it was oiled; that no excess or surplus oil was noticed on the floor on Monday morning; that the oil used was manufactured and sold by a reputable company for use in oiling floors; that the oil was but little heavier than ordinary kerosene.
¶8 It is defendant's contention that the evidence is insufficient to go to a jury on the question of actionable negligence.
¶9 Defendant cites and relies upon J. C. Penney, Inc., v. Maude Robison, 128 Ohio St. 626, 193 N. E. 401, 100 A.L.R. 705, and other similar cases.
¶10 Plaintiff relies upon Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P.2d 820, and other similar cases.
¶11 The question is extensively annotated in 100 A. L. R., beginning at page 748. In Ohio, in J. C. Penney, Inc., v. Robison, supra; North Carolina, Parker v. Great Atlantic & P. Tea Co., 201 N. C. 691, 161 S. E. 209; Rhode Island, Tenbrink v. F. W. Woolworth Co., 153 A. 245, and some other cases, the rule followed seems to be that evidence such as we have here, or a showing of a somewhat similar state of facts, establishes no actionable negligence, and there is no question of fact for the jury. In some of the cases the plaintiff was held guilty of contributory negligence as a matter of law.
¶12 In Kansas, Walker v. S. H. Kress & Co., supra, and Bury v. Woolworth Co., 129 Kan. 514, 283 P. 917, the rule is stated that where there is evidence that the floor had been freshly or heavily oiled and was slick, and customers wearing low heeled shoes while walking in ordinary manner slipped and fell and that there was a streak about two feet long on the floor, there is sufficient evidence to go to the jury.
¶13 Fifteen other states hold to a doctrine in line with the Kansas court. In some of the cases the evidence was more favorable to plaintiff than in Walker v. Kress & Co., supra.
¶14 The evidence in the instant case is slightly stronger in favor of the plaintiff than in the Ohio case of J. C. Penney v. Robison, supra.
¶15 All the courts agree that in such cases the relation of invitor and invitee exists, and that the storekeeper owes the customer the duty to exercise ordinary care to keep the aisles, passageways, and such other parts of the premises as are ordinarily used by customers in transacting business, in a reasonably safe condition for use by the persons entering, and to warn them of dangerous conditions upon the premises which are known, or which reasonably should be known to him but not to them. But he is not an insurer of his customer's safety while upon his premises. 38 Am. Jur. p. 791.
¶16 The question of whether, in a given case, the storekeeper has been negligent in respect to his duty is usually a question of fact for a jury.
¶17 The evidence in this case was sufficient to present the issue of defendant's negligence to the jury.
¶18 It is next contended that the court erred in refusing defendant's requested instruction No. 4. Therein the defendant requested the court to instruct:
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