Spears v. Goldberg., 9108

• Decision Date: 08 October 1940
• Docket Number: No. 9108,9108
• Citation: 122 W.Va. 514
• Court: West Virginia Supreme Court
• Parties: Stella Ford Spears v. Alex Goldberg et al.

122 W.Va. 514

Stella Ford Spears

v.Alex Goldberg et al.

No. 9108

Supreme Court of Appeals of West Virginia.

Submitted September 5, 1940.

Decided October 8, 1940.

1. Nuisance

What constitutes a nuisance is a question of law, but ascertainment and determination of the facts whereon judicial pronouncement may be based in a given case is a jury matter.

2. Nuisance

A person does not insure the safety of others whom he invites on his premises for business or other purposes, but he must be prudent to render the premises reasonably safe for the visit.

Error to Circuit Court, Randolph County.

Action by Stella Ford Spears against Alex Goldberg and others, to recover damages for injuries sustained by the plaintiff in a fall on a ramp at entrance to a store. From an adverse judgment, plaintiff appeals.

Reversed and remanded.

Kenna, Judge, dissenting.

John C. Mather and E. L. Maxwell, for plaintiff in error. Arnold & Crawford and E. A. Bowers, for defendants in error.

Maxwell, Judge:

This is an action for damages for personal injuries sustained by the plaintiff. At the conclusion of the introduction of her evidence, the court, on motion of the defendants, struck out the plaintiff's evidence as insufficient to sustain her claim, and 'directed a verdict for the defendants. This review is under a writ of error awarded the plaintiff by this Court.

The plaintiff, Stella Ford Spears, is a resident of the City of Elkins. The defendants, Alex Goldberg and Dorothy Goldberg, partners trading as L. Goldberg & Sons, conduct in Elkins a department store in a building owned by the estate of Teresa Bodkin, deceased, which property is under the control of the defendant, Mary O'Connor, executrix, of the last will of the decedent.

The Goldberg store, situated on Third Street, has three front entrances placed alternately between display windows which extend back several feet from the front of the building at the street line. Each entrance door is recessed from the street a distance of eight feet and seven inches. The surface of the floor of the store room is ap- proximately seven inches above the level of the public sidewalk immediately in front of the building. At each entrance the approach from the sidewalk to the floor of the store is by means of an incline or ramp which rises 82/100 of an inch per foot. These sloping approaches are surfaced with terrazzo, which is a material frequently used for floors. It is a composition of marble chips and cement with an abrasive material, frequently carborundum, added. The mix when laid is rubbed smooth for surfacing.

On the morning of September 14, 1938, the plaintiff, on attempting as a customer to enter the Goldberg store by the middle front entrance, slipped and fell on the terrazzo incline, thereby suffering a fracture of her left femur. The morning was rainy, and the terrazzo where she fell was wet.

In her declaration herein the plaintiff does not allege negligence on the part of the defendants, but alleges that the terrazzo entrance ways were "highly polished, and extremely slippery when wet," and in rainy or damp weather constituted a nuisance. The alleged nuisance is denominated in the first count of the declaration as a public one, in the second, as private, and in the third, as mixed.

We are of opinion that the trial court should not have directed a verdict for the defendants, but that the case should have been submitted to the jury for determination of the factual questions, (a) whether the terrazzo incline, as constructed, was slippery and dangerous when wet; (b) whether the plaintiff was guilty of negligence in her manner of entering upon the incline immediatley preceding her fall. Higginbotham v. Kearse, 111 W. Va. 264, 161 S. E. 37, 77 A. L. R. 1110. True, what constitutes a nuisance is a question of law, but ascertainment and determination of the facts whereon judicial pronouncement may be based in a given case is a jury matter. Price v. Travis, 149 Va. 536, 140 S. E. 644, 56 A. L. R. 209; Davidson County v. Blackwell, 19 Tenn. App. 47, 82 S. W. (2d) 872.

A condition which constitutes a nuisance is to be classed as a public or a private nuisance, not because of the nature or character of the thing itself, but on the basis of whether it is detrimental to the public. Harris v. Poulton, 99 W. Va. 20, 29, 127 S. E. 647, 40 A. L. R. 334.

A civil engineer, witness for the plaintiff, experienced in terrazzo construction, testified that terrazzo, properly constructed with sufficient abrasive, is not slippery when wet. If the case had gone to the jury, and they had accepted this testimony as correct, they would have been justified in believing therefrom, and from other evidence, that the incline when wet was slippery because of an inherent defect in construction. On such factual finding as to the nature of the entrance the court would have been warranted in adjudging liability against the defendants on the ground of nuisance, if the jury had granted the plaintiff...