Shiflett v. M. Timberlake, Inc.
| Decision Date | 11 September 1964 |
| Docket Number | No. 5781,5781 |
| Citation | 205 Va. 406,137 S.E.2d 908 |
| Parties | DORIS L. SHIFLETT v. M. TIMBERLAKE, INCORPORATED. Record |
| Court | Virginia Supreme Court |
Frank C. Maloney, III and Cary L. Branch (Allen, Allen, Allen & Allen, on brief), for the plaintiff in error.
Robert E. Taylor (Richard S. Callaghan, Jr.; Taylor, Camblos & Michie, on brief), for the defendant in error.
Doris L. Shiflett, sometimes hereinafter called the plaintiff, filed a motion for judgment against M. Timberlake, Incorporated, hereinafter called the defendant, the operator of a drugstore in the city of Charlottesville, to recover damages for injuries sustained when she slipped and fell to the floor while visiting the drugstore as a customer. She alleged that her fall and injuries were caused by the negligence of the operators of the store in failing to exercise ordinary care to keep the premises in a reasonably safe condition and in failing to warn her of the dangerous condition thereof. In its responsive pleadings the defendant denied the allegations of negligence and alleged that the plaintiff's injuries were caused by her own negligence.
At a trial before a jury motions to strike the evidence of the plaintiff and enter summary judgment for the defendant were made at the conclusion of the plaintiff's evidence and again at the conclusion of all of the evidence. These motions were overruled. The jury returned a verdict of $10,000 in favor of the plaintiff. On motion of the defendant the lower court set aside the verdict and entered a final judgment for the defendant. We granted the plaintiff a writ of error.
The sole question presented on this appeal is whether the evidence, considered in the light most favorable to the plaintiff, was sufficient to support the finding of the jury that the defendant was guilty of negligence which was a proximate cause of the plaintiff's injuries and that she was free of contributory negligence.
Stated in the light of the verdict favorable to the plaintiff, the facts are these: On Saturday, December 23, 1961, shortly before 3:00 P.M., Mrs. Shiflett entered the defendant's drugstore intending to buy a sandwich and a cup of coffee. It was then snowing and had been since early morning and there was slush on the sidewalks. She was wearing spike high-heel shoes, but no overshoes, and was carrying several packages.
Mrs. Shiflett entered the main entrance to the drugstore, on the outside of which was a rubber mat. She walked down the aisle in a normal manner toward the luncheonette in the rear and was looking at a bright display on the middle counter. She said that after she had taken about six or seven steps her feet 'suddenly shot out from under' her and she fell, landing on her left hip, and was 'knocked unconscious.' In a short while she was taken to a hospital. En route there she regained consciousness and noticed that her clothes in the back from the waist down were quite wet.
The plaintiff testified that prior to her fall she 'could see nothing on the floor' which caused her to fall. However, Mrs. Ruth V. Lewis, who at the time was employed as a fountain girl in the drugstore, testified that she was near the front of the store and saw Mrs. Shiflett enter and later fall. Mrs. Lewis stated that there was water on the floor at the place where Mrs. Shiflett fell.
John R. Ponton, one of the owners of the drugstore, testified that when the weather is inclement and it is noted that dampness is being tracked into the store and water is accumulating on the floor, it is mopped. Moreover, he said, a 5 by 3 cocoa mat is put inside the entrance for the purpose of removing water from the feet of the customers.
Ponton further testified that about an hour before Mrs. Shiflett's visit he observed that water was being tracked in by the customers and that the floor was 'getting damp.' He said that while three porters were available for mopping the floor when necessary, there was no accumulation of water at that time and it was not mopped, but that he brought the cocoa mat from the basement of the store and placed it just inside the door and that it was there when Mrs. Shiflett entered the drugstore.
Mrs. Lewis, the witness for the plaintiff, testified positively that this cocoa mat was not there at the time Mrs. Shiflett came into the drugstore. In her testimony, Mrs. Shiflett said nothing about this mat, but recalled the rubber mat outside the door.
The floor at the scene of the accident has a standard Armstrong plastic covering customarily used in commercial and mercantile buildings. There was no defect in the floor, but there is evidence on behalf of the plaintiff that such covering becomes slippery when wet and that the proprietors of the drugstore were aware of this.
Judy Shiflett, a daughter of the plaintiff, testified that a day or two after the accident she called the drugstore to inquire as to what had become of the packages which her mother was carrying at the time of her fall. She said that she talked to Samuel T. McAtee, one of the owners, and that during the conversation McAtee expressed his regret at the accident, saying that 'he was sorry and he should have had the floor mopped up or a mat down because the combination of the floor and water made a very slippery substance.'
While McAtee admitted having had a conversation with Miss Shiflett about the packages, he denied having told her that the floor was slippery or that it should have been mopped or that the mat was not in the proper place.
Without objection, the lower court instructed the jury that the plaintiff occupied the status of an invitee in the store; that the defendant owed her the duty to exercise ordinary care to have its premises in a reasonably safe condition at the places she had a right to be; and that it owed her the duty to give an effective and timely warning of the existence of a hazardous condition, if any, on the premises which was or should have been known to the defendant and was unknown to the plaintiff.
Likewise without objection, the jury were further told that if they found from the evidence that the floor of the drugstore was slippery and dangerous or unsafe at the time of the plaintiff's visit, that the defendant knew, or in the exercise of reasonable care should have known, that fact and failed to correct such situation within a reasonable time thereafter, and that the condition of the floor proximately caused the plaintiff's injuries, they should find a verdict in her favor unless they found from a preponderance of the evidence that she was contributorily negligent.
Such instructions are within the principles long recognized by us and recently stated in Great Atlantic & Pacific Tea Co. v. Rosenberger, 203 Va. 378, 380, 124 S.E.2d 26, 28, and cases there cited.
The gist of the plaintiff's case is that the evidence warranted the jury in finding that the floor of the drugstore had become wet and slippery because of water tracked in by customers prior to the plaintiff's visit there; that the defendant knew or should have known of this condition; and that the defendant was negligent in failing (1) to place a mat inside the door to absorb the water from the feet of the customers, (2) to mop the floor where the water was accumulated, and (3) to warn her that...
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