Sherwood v. Miles Shoes of Toms River, Inc.

• Decision Date: 17 February 1959
• Docket Number: No. A--418,A--418
• Citation: 54 N.J.Super. 129,148 A.2d 504
• Parties: Lillian SHERWOOD, Plaintiff-Respondent, v. MILES SHOES OF TOMS RIVER, INC., Defendant-Appellant, and Princeton Cleaning & Floor Waxing Corp., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 129

54 N.J.Super. 129

148 A.2d 504

Lillian SHERWOOD, Plaintiff-Respondent, v. MILES SHOES OF TOMS RIVER, INC., Defendant-Appellant, and Princeton Cleaning & Floor Waxing Corp., Defendant-Respondent.

No. A--418.

Superior Court of New Jersey

Appellate Division.

Argued Nov. 3, 1958.

Decided Feb. 17, 1959.

George Y. Schoch, Trenton, for defendant-appellant (Irving H. Lewis, Trenton, attorney).

Robert F. Novins, Toms River, for plaintiff-respondent (Novins, Novins & O'Connor, Toms River, attorneys; William E. O'Connor, Jr., Toms River, on the brief).

Before Judges PRICE, SCHETTINO and GAULKIN.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Defendant Miles Shoes of Toms River, Inc. (hereinafter designated 'Miles') seeks to reverse a judgment entered on a verdict of $25,000 in favor of plaintiff against it in a negligence action in the Superior Court, Law Division. Plaintiff, a customer of the Miles store, alleged that October 21, 1955 she suffered severe personal injuries as the result of a fall caused by slipping on wax on defendant's floor. In her complaint plaintiff sought recovery also against defendant Princeton Cleaning & Floor Waxing Corp. (hereinafter designated 'Princeton') which by 6 p.m. the day before the accident occurred, had completed waxing the Miles store floor under contractual arrangement with Miles.

Near the close of the trial plaintiff negotiated a settlement with Princeton for $5,000, which fact was made known to the trial court but not to the jury. Under stipulation entered on the record with all counsel and the court participating, but out of the presence of the jury, it was agreed that the case should proceed as if no such settlement had been made but that regardless of the jury's verdict Princeton would pay plaintiff $5,000. The jury returned a verdict of no cause for action in favor of Princeton.

On this appeal Miles contends that the trial court erred: (a) in denying Miles' motion for involuntary dismissal at the end of plaintiff's case (R.R. 4:42--2(b)); (b) in its charge to the jury; (c) in its refusal to include in its charge certain requests submitted by Miles; and (d) in its refusal on Miles' motion for a new trial to direct, as then urged alternatively by Miles, that it was entitled to certain credits because of a stipulation made by respective counsel relating to the aforesaid settlement between plaintiff and defendant Princeton. Defendant Miles charges also that the verdict was against the weight of the evidence and so excessive as to warrant this court in setting aside the resultant judgment and granting a new trial. To evaluate the contentions urged by Miles for reversal it is necessary to review the evidence presented.

Defendant Miles, at the pretrial conference, admitted that plaintiff fell in its store but denied that it was negligent. It alleged that Princeton was not its agent but an independent contractor retained by it to clean and wax its floor. Defendant Princeton admitted that it waxed the Miles' floor but denied any negligence in so doing. Both defendants asserted affirmative defenses of contributory negligence and assumption of risk.

Plaintiff, who was 63 years of age at the time of the accident, testified that she entered the Miles' store and had proceeded about five feet when the heel of her right foot 'skidded across the floor' and hit her left foot. She fell backwards and fractured her right hip.

On direct examination plaintiff testified that after she fell she was assisted to a chair which was placed by an employee near the site of her fall and while there she saw that the floor was 'newly waxed.' She added: '* * * right about where I fell there was a skidmark from my shoe, and it seemed there was a little ridge there * * * there was a spot there where my heal made a skidmark. * * * and right by the skidmark you could see the little slight ridge that went through the skidmark.' She described the floor as 'in some places a little shinier than others.' She stated that the area where the skid mark was located was 'sort of dull and ripply looking' and stated that the skid mark was a foot to 16 inches in length.

Robert Spector, a former salesman and assistant manager for Miles, was called as a witness by plaintiff. He testified that he was waiting on a customer at the time plaintiff fell. He secured the chair, as aforesaid, and, with the help of another Miles employee, Grace Placente, assisted plaintiff to it. He stated on direct-examination that 'the floor was very slippery and kind of waves' and, identifying where plaintiff had fallen, testified that it was 'very slippery there; it seemed more so in that spot than anywhere else * * * slippery and uneven * * * there was a kind of a rub or gash, or whatever you call it in the wax where her heel had kind of slithered * * *.' He further testified that on the morning of the accident he had observed that 'the floor was very slippery' and that he 'almost slipped a few times.' On cross-examination by the attorney for Miles he added that the 'wax was uneven' and 'was in waves, uneven.'

Mr. McHale the manager of Miles store testified that Spector was assistant manager but that he had no managerial duties except in McHale's absence; that he, McHale, saw plaintiff fall; that he examined the floor, that it was waxed evenly; that the waxing had been finished by 6 p.m. the previous evening; that there was no accumulation of wax when he inspected it the evening prior to the fall and he observed a smooth polished surface; that he observed the floor the next morning both before and after plaintiff fell and there had been no change.

Grace Placente was called as a witness by defendant Miles. She had left Miles employ and at the time of the trial was employed by Spector. She testified that she saw plaintiff fall; that after plaintiff fell she did not inspect the floor area where the fall occurred but that she had noticed that morning that the floor was slippery and that she had slipped on it on 'several occasions' that morning--later modified by her to say that she had slipped 'a couple of times'; that she did not know whether the wax was applied evenly or unevenly; that she didn't know whether it was shiny or dull; that she did not pay any attention.

We address our attention initially to Miles' contention that the trial court erred in denying its motion for an involuntary dismissal at the end of plaintiff's case. Although defendant Miles made a motion for the entry of a judgment of dismissal at the end of the entire case, R.R. 4:51--1, it makes no mention of the denial of that motion on this appeal. However, on this review 'all of the competent and relevant evidence introduced at the trial will be considered in determining whether the denial of the motion at the close of the plaintiff's case constitutes cause for reversal.' Falk v. Unger, 33 N.J.Super. 589, 592, 111 A.2d 283, 285 (App.Div.1955). In determining the validity of the action of the trial court we give plaintiff the benefit of all of the evidence in her favor as well as all inferences favorable to her which can reasonably be drawn from the testimony adduced by both sides. Shimp v. Pennsylvania Railroad Co., 11 N.J.Super. 88, 91, 78 A.2d 111 (App.Div.1951), affirmed 8 N.J. 1, 83 A.2d 521 (1951).

Defendant in challenging the trial court's ruling relies on Overby v. Union Laundry Co., 28 N.J.Super. 100, 100 A.2d 205 (App.Div.1953), affirmed 14 N.J. 526, 103 A.2d 404 (1954), and Bosze v. Metropolitan Life Ins. Co., 1 N.J. 5, 9, 61 A.2d 499 (1948).

In the Overby case, in which the evidence showed that defendant's floor had been waxed at some undisclosed time prior to appellant's mishap, we reviewed various cases bearing on this subject, 28 N.J.Super. at pages 106, 107, 100 A.2d 205.

After referring to the case of Abt v. Leeds & Lippincott Co., 109 N.J.L. 311, 162 A. 525 (E. & A. 1932), we said, 28 N.J.Super., at page 105, 100 A.2d at page 208 'proof of the mere circumstance that a person falls upon a floor that admittedly has been waxed does not warrant any inference that the mishap was caused by the proprietor's negligence.' Then citing the Bosze case, supra, we stated, 28 N.J.Super. at page 105, 100 A.2d at page 208, that 'to generate an inference of negligence in such cases, it must be made to appear that either in the nature or quantity of the substance used, or in the manner or time of its application, there was such a departure from the normal or generally accepted standards as to create a hazard of a tortious character for the lawful users of the premises.'

We held in the Overby case (28 N.J.Super. at page 106, 100 A.2d at page 208) that the appropriate inquiry is whether the testimony would justify the inference that '(1) the wax had been applied to the floor in a manner so unconformable to the normal and generally accepted practices, (2) that a hazard of a tortious character was thereby created.'

After reviewing the particular facts present in the Overby case and noting that 'precedents are normally scarce in this field of judicial action' because of the dissimilarity of facts in cases cited as analogous, we held, 28 N.J.Super. at page 108, 100 A.2d at page 210, that the facts there present did not of themselves 'create a logical and legitimate inference that the floor had been waxed in a manner so much at variance with the normal and generally accepted practices as negligently to imperil the safety of the customer.'

Defendant contends that the Overby case is dispositive of the case at bar and that under its authority the plaintiff's case should have been dismissed by the trial court. We disagree. In the instant case there were present additional factual elements and inferences which might be drawn therefrom which differentiate the present case from the Overby case. These additional factual elements are found in the testimony hereinabove outlined, including the element that the waxing of the floor had been completed...