Smith v. Manning's, Inc.
| Decision Date | 18 May 1942 |
| Docket Number | 28399. |
| Citation | 126 P.2d 44,13 Wn.2d 573 |
| Court | Washington Supreme Court |
| Parties | SMITH et ux. v. MANNING'S, Inc. |
Department 1.
Action by Herbert Smith and wife against Manning's Incorporated, for personal injuries to plaintiff wife. From a judgment of dismissal, plaintiffs appeal.
Reversed and remanded, with direction.
Appeal from Superior Court, King County; Clay Allen, Judge.
Oscar A. Zabel, of Seattle, for appellants.
Whittemore & Truscott, of Seattle, for respondent.
Plaintiffs husband and wife, brought this action for personal injuries suffered by the wife as the result of a fall in the cafeteria section of a store operated by the defendant at 216 Union street in Seattle. A trial by jury resulted in a verdict for the defendant. Plaintiffs' motion for a new trial was denied, and they have appealed from the judgment of dismissal entered on the verdict. For convenience, Mrs. Smith, the injured wife, will hereinafter be referred to as if she were the only appellant.
About 11:20 in the forenoon of July 26, 1938, appellant accompanied by her daughter, entered respondent's store and ordered a hamburger sandwich and some coffee at the cafeteria counter. She then sat down at a table in one of the booths at the rear of the room. There was a row of these booths on either side of a narrow aisle four or four and a half feet wide and about forty feet long. The floor of the aisle was covered with linoleum, and it was well lighted by overhead electric lights. When the food which appellant ordered had been prepared, one of respondent's bus boys brought it down the aisle and put it on her table. Shortly thereafter, upon discovering that she had no teaspoon, she started up the aisle towards the counter to get one when suddenly her foot slipped and skidded, and she fell to the floor. Two bus boys, seeing her plight, came to her assistance and picked her up. She testified that crumbs had adhered to her coat while she was on the floor; that, as she sat there, with one foot doubled up underneath her she could see a slice of pickle attached to the heel of her shoe; that the floor of the aisle was littered with matches and cigarette butts, 'It was littery and dirty'; and that one of the bus boys got a little broom and dustpan and wiped up the place where she had fallen--'scooped around and swiped it up.'
Appellant testified also that she had been a patron of respondent's cafeteria a number of times prior to her accident, and that, customarily, the bus boys, in cleaning off the tables, had wiped the crumbs and 'the slop and stuff on the floor.' She was corroborated in this by the testimony of her daughter.
It had been a common custom for patrons to bring their own lunches and then supplement them with coffee and other articles of food purchased at the cafeteria. Respondent had permitted this because it tended to stimulate grocery sales of its coffee. The bus boys on duty at the time of the accident testified that it was their practice, in accordance with their instructions, to take up immediately any potentially dangerous refuse dropped on the floor by the patrons; that, in clearing off a table, they sometimes dropped things, but immediately picked them up; and that the floor was swept twice a day, at eleven o'clock in the morning, just Before the lunch hour rush, and again at two o'clock, after the rush. However, none of the bus boys or the manager, called as witnesses for the respondent, could say that the floor had been swept on the forenoon of the accident.
The bus boy on duty in the aisle when appellant fell testified that he was 'possibly ten, fifteen or twenty feet away,' and that As the result of her fall, appellant suffered a fractured ankle bone.
Appellant assigns as error the trial court's refusal to give one of her requested instructions and the giving by the court of its instruction No. 9. Timely and sufficient exceptions were taken as to both of them. The proposed instruction in question is as follows:
The second sentence of the instruction, with reference to the duty of care of a storekeeper to maintain his place of business in a reasonably safe condition for his patrons, was, in substance, covered by the instructions which the court gave. Appellant contends, however, that it was error to reject the first sentence of the proposed instruction.
A patron of a restaurant or store does not have an absolute, unqualified right under all circumstances to assume that 'the floors and aisleways are in a reasonably safe condition to walk upon.' He must look out for his own safety and, in so doing, is required to use that degree of care which a reasonably prudent person of ordinary intelligence would exercise under like or similar circumstances. Watson v. Zimmerman, 175 Wash. 410, 27 P.2d 707; Tyler v. F. W. Woolworth Co., 181 Wash. 125, 41 P.2d 1093. If there are obvious pitfalls or dangers in the way, it is the patron's duty to take measures to avoid them.
In the instant case, according to appellant's own testimony, the floor of the aisle was littered and dirty. She had the right to assume that it was in a reasonably safe condition for travel only until she knew, or, in the exercise of reasonable care, should have known, the contrary. Whether or not she should have known, or was negligent in failing to see the dangerous condition of the floor, under the circumstances, we think, clearly was a question of fact for the jury. The trial court did not err in refusing the proffered instruction in the absence of some such qualification as we have indicated.
Passing to appellant's second assignment of error, the trial court's instruction No. 9, to which it pertains, reads as follows:
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