Sargent v. Safeway Stores, Inc.
| Decision Date | 10 February 1966 |
| Docket Number | No. 37777,37777 |
| Parties | Wendell K. SARGENT and Neva Sargent, husband and wife, Respondents, v. SAFEWAY STORES, INC., a corporation, Appellant. |
| Court | Washington Supreme Court |
Hughes & Jeffers, Joseph L. Hughes, Wenatchee, for appellant.
Robert E. Conner, Wenatchee, for respondents.
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Plaintiffs, husband and wife, bring this action for damages for personal injuries sustained by the wife, Neva Sargent, when she slipped and fell in a grocery store owned and operated by defendant Safeway Stores, Inc., and located in Wenatchee. Negligence was alleged against Safeway for failure to keep its business premises in a reasonably safe condition, which negligence was the proximate cause of her fall. A jury returned a verdict in favor of the defendant.
The specific acts of negligence charged were: (1) in causing or permitting the floor to become excessively slick through the use of waxing material to the extent that the floor was dangerous; and (2) through the permitting of an accumulation of water upon the floor in such a manner that the floor became excessively slick. Although plaintiffs did not specifically allege that wax was applied in an improper manner to the floor of defendant's premises, certain testimony was adduced at trial to this effect.
Following the verdict for defendant, plaintiffs moved for a new trial. The trial judge granted the motion and ordered a new trial on the stated ground that he had committed an error at law by not giving the jury an instruction specifically embodying the possible improper application of the wax. Safeway appeals, assigning error to the new trial order.
The trial court has a wide discretion in the matter of granting or denying a new trial, except where its order is predicated upon an erroneous ruling. Worthington v. Caldwell, 65 Wash.Dec.2d 251, 396 P.2d 797 (1964). The trial court there ruled that it had failed, as a matter of law, to property instruct the jury.
The given instructions in the present case included the following:
Instruction No. 9. You are further instructed that the duty of a storekeeper to furnish a reasonably safe place for its customers is a non delegable duty. This is to say that a storekeeper who has failed to keep the floors in a reasonably safe condition cannot be excused for failure because of the neglect of any agent or employee whose duties include the duty to inspect for or correct hazardous conditions.
Instruction No. 10. You are instructed that negligence is not proven by simply showing that the floor had been waxed and as a result had become smooth or even slippery to a degree, or simply that the plaintiff fell and injured herself.
In order for plaintiff to recover you must be satisfied by a fair preponderance of the evidence that the defendant caused or permitted the floor to be in an unreasonably dangerous condition, and that such condition was the proximate cause of plaintiff's injuries, and that such condition was either known to the defendant or, in the exercise of reasonable caution, should have been known to the defendant, and the defendant, in the exercise of reasonable caution, should have remedied the situation.
The plaintiffs proposed the following instructions:
Proposed Instruction No. K. You are further instructed that the duty of a storekeeper to furnish a reasonably safe place for the customers is a non delegable duty. Thus is to say that a storekeeper who may have failed to apply floor wax in a safe manner or keep the floors in a reasonably safe condition cannot be excused for such failure because of the neglect of any agent or employee whose duties included the duty to inspect for or correct hazardous conditions or to apply the floor surfacing material itself.
Proposed Instruction No. M. You are instructed that there is no presumption of negligence arising from the fact that somebody falls on a slippery floor, a floor made slippery by the intentional application of wax or any other substance. In order for the Plaintiff to recover because of the wax, she has the burden of proving either that the product was improper, or that the manner of its use was improper.
We first note that no exception was taken to the giving of instruction No. 10, nor to the failure to give plaintiffs' proposed instruction No. M. Insofar as the trial court based its new trial order on its failure to give this proposed instruction, such order must be reversed. It is the law of this jurisdiction that an error in refusing or giving an instruction will not support an order granting a new trial if no exception was taken at the time the ruling was made. Pritchett v. City of Seattle, 53 Wash.2d 521, 335 P.2d 31 (1959). We are constrained to add that, even if proper exceptions had been made, the trial court did not err by failing to give proposed instruction No. M. Instruction No. 10 was a proper statement of the law. It was sufficiently broad to allow plaintiffs to adequately argue their theory of negligence to the jury. In such a circumstance it is not error for the court to fail to give a more specific instruction. Hartman v. Port of Seattle, 63 Wash.2d 879, 389 P.2d 669 (1964).
The trial court refused to give plaintiffs' proposed instruction No. K, supra. Plaintiffs excepted. It was not error for the trial court to refuse to give this instruction. Instruction No. 9, given, was broad enough to allow plaintiffs to argue that defendant Safeway had a nondelegable duty to see that the wax was properly applied, which is the most that could be argued from their proposed instruction No. K. The refusal to give the proposed instruction was not error. See Hartman v. Port of Seattle, supra.
In view of the above discussion, it is not necessary to discuss defendant's contention that there is no evidence that the method of application of the wax contributed to the floor's slippery condition. It must be held that the trial judge erred in granting a new trial, insofar as that ruling was based upon his failure to give an instruction regarding the manner in which the wax was applied to the floor.
It is next urged that the granting of the new trial should be affirmed, on a ground different from that upon which the trial court's order was founded. It is no doubt the rule that, where a new trial is granted on specific grounds, this court may consider any grounds or reasons properly presented to the trial court by the party seeking to sustain the new trial, and the court of review should affirm the new...
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...appellate court from considering anything beyond those reasons when reviewing the order on appeal. Accord Sargent v. Safeway Stores, Inc., 67 Wash.2d 941, 944-45, 410 P.2d 918 (1966) ("[W]here a new trial is granted on specific grounds, this court may consider any grounds or reasons properl......
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...of sound discretion on the part of the trial judge. Bunnell v. Barr, 68 Wash.2d 771, 415 P.2d 640 (1966); Sargent v. Safeway Stores, Inc., 67 Wash.2d 941, 410 P.2d 918 (1966). Generally, an order granting a new trial will not be disturbed on appeal absent an abuse of discretion. Olpinski v.......
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...by the defense on the issue of liability. Under these circumstances, the claim of error cannot be reviewed. Sargent v. Safeway Stores, Inc., 67 Wash.2d 941, 410 P.2d 918 (1966); Brown v. Coca-Cola Bottling, Inc., 54 Wash.2d 665, 344 P.2d 207 (1959); CR 51(a), (f). The burden is on each part......
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