Stephens v. Sears Roebuck & Co., No. 10994.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: MAJOR, , and SWAIM and SCHNACKENBERG, Circuit
• Citation: 212 F.2d 260
• Parties: STEPHENS et al. v. SEARS ROEBUCK & CO.
• Decision Date: 26 April 1954
• Docket Number: No. 10994.

212 F.2d 260 (1954)

STEPHENS et al.
v.
SEARS ROEBUCK & CO.

No. 10994.

United States Court of Appeals Seventh Circuit.

April 26, 1954.

Edmond J. Leeney, Fred A. Malo, Hammond, Ind., Wagner & Malo, Galvin, Galvin & Leeney, Hammond, Ind., of counsel, for appellant.

Maurice B. Wolf, Burton Y. Weitzenfeld, Lederer, Livingston, Kahn & Adsit, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and SWAIM and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

The plaintiff Ruth Stephens, brought an action to recover damages occasioned by the alleged negligence of the defendant in maintaining the floor of its store. The plaintiff, Richard F. Stephens, is her husband and he brought an action to recover

212 F.2d 261

for hospital and medical expenses and loss of services. The actions were consolidated for trial. The jury rendered verdicts for the plaintiffs. The defendant filed motions for judgments notwithstanding the verdicts, which motions were granted and the court entered judgment for the defendant, from which this appeal is prosecuted. The error relied on arises out of sustaining the defendant's motions for judgments notwithstanding the verdicts, on the ground that the evidence was insufficient to establish negligence on the part of the defendant

The plaintiff, Ruth Stephens, and Mrs. Earl Hamilton, a friend, entered the defendant's store to make a purchase. They entered a washroom on the second floor, and Mrs. Hamilton sat in a chair. Mrs. Stephens, aged 62 years, was walking across the floor of the washroom toward the wash basin when, according to her own testimony, "suddenly I seemed to hit a greasy or slick spot, my feet flew out from under me, and I hit the floor". She was physically injured as the result of the fall. She testified that, as she went into the room she noticed that the floor was "very slick and shiny", and Mrs. Hamilton testified that when she walked on the floor she observed that it was "shiny and very slick". Mrs. Stephens testified further that she thought that the floor was painted and that it was waxed. Both of these witnesses testified that they had had experience in applying wax to floors. Mrs. Hamilton testified that from noticing that the floor was slick she concluded that there was some wax on it.

Witnesses for the defendant testified that the floor had not been waxed, that there were no grease spots on it, and that there was no foreign matter on the floor where Mrs. Stephens fell; the floor was...