Straley v. Keltner

• Citation: 109 Ohio App. 51,164 N.E.2d 186
• Parties: , 10 O.O.2d 214 STRALEY, Appellant, v. KELTNER et al., Appellees.
• Decision Date: 20 May 1959
• Court: Ohio Court of Appeals

Page 51

109 Ohio App. 51

164 N.E.2d 186, 10 O.O.2d 214

STRALEY, Appellant, v. KELTNER et al., Appellees.

Court of Appeals of Ohio, Montgomery County.

May 20, 1959.

Syllabus by the Court.

Where a person living in his trailer parked at a rental in a trailer park proceeds to a concrete platform therein for the purpose of depositing garbage in containers on the platform provided by the park owner, the grounds, walks and platform being covered with frost and ice which is plainly visible and which the tenant sees, and, after reaching and stepping upon the platform, depositing his garbage and turning to go back, the tenant slips on the ice and falls thereon three feet from the platform upon a walk, he is guilty of negligence contributing to, or assumes the risk of, any injury he may receive as the result of the fall.

William M. Hunter and Samuel A. McCray, Dayton, for appellant.

Pickrel, Schaeffer & Ebeling and William H. Selva, Dayton, for appellee.

WISEMAN, Presiding Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County entered on a directed verdict in favor of the defendants.

The only error assigned is that the trial court erred in sustaining defendants' motion for a directed verdict at the close of plaintiff's case.

Plaintiff, a tenant in a trailer park, sued the owners and operators of the trailer park to recover damages for personal injuries which she sustained when she allegedly fell on a cement platform which was covered with ice.

The facts may be summarized as follows:

On January 27, 1955, plaintiff, who was subject to fainting spells and dizziness, was the owner of a trailer which she parked at a designated location, for an agreed rental, in defendants' trailer park. As a service and for the use of its patrons, defendants provided a utility building at one end of which was located a concrete platform upon which were placed eight containers for use by patrons to dispose of garbage. Two days previous to January 27, 1955, snow had fallen, and on the day in question it was slippery and very cold. Plaintiff left her trailer and walked to the utility building and on her way met and talked with Beal, the park maintenance man, who was chipping ice from the sidewalk a few feet from the utility building. Plaintiff walked to the concrete platform and observed that the platform was covered with frost and ice, and that no salt or sand had been thrown upon the ice. Although plaintiff asked Beal why he had not put any salt on the platform, she did not ask him to clear the ice or to put any salt upon the platform before she stepped upon it. After stepping upon the ice covered platform, plaintiff placed her sack of garbage upon the lid covering the container, raised the lid, placed the garbage in the container, lowered the lid and turned to go back, and, according to the testimony of the plaintiff, that is the last thing she remembers. When she regained consciousness she was lying on her back on the ground across the sidewalk with her feet approximately three feet from the end of the concrete platform.

The slippery and dangerous condition of the platform was plainly visible, and the evidence shows that the plaintiff was fully cognizant of such hazardous condition of the platform. There is no direct evidence supporting the claim that plaintiff slipped on the ice; neither is there any direct evidence that plaintiff slipped and fell while using the platform. On direct examination, the plaintiff testified as follows:

'Q. And then what did you do? A. I took hold of that with my hand and stepped upon the platform as I got up there and I laid the sack on the lid and took my left hand and raised the lid and put my sack in. There is a pulley there and it goes down by itself so you don't have to push it down but I kept hold of the wall with my left hand.

'Q. Then what happened? A. I thought I would take hold with my left hand and turned to go back and that is all I remember.

'Q. As you stepped up there, was there any where on this garbage loading platform that was bare concrete? A. No, it was not bare concrete. The ice had been taken off part of it but it had that film-like over it. I don't know whether you would call it frost or what you would call it after ice and snow is swept off, it is slick and glazy. The ice had been chipped at that end because there were just spots of rough thick ice.

'Q. Was there any sand there at any where? A. No, not that I seen.

'Q. Was there any bare concrete that was solid footing there? A. No sir, there wasn't.

'Q. Can you explain why it was that you deposited your garbage at the point where you did deposit it? A. Because I didn't want to walk any further than I did on the walk and I was going to work and there wasn't any place else to take it and I had to put it there.

'Q. Was there any place less slippery than the place you selected to stand? A. No sir.

'Q. What then happened? A. I fell.

'Q. What do you next remember? A. I was laying out on the ground.

'Q. Can you describe the distance at which you found yourself as best you can, please? A. I was laying out off the sidewalk, northeast, more or less.'

On cross-examination, the plaintiff testified as follows:

'Q. And the condition of the slab was apparent to you before you stepped up, that is, this ice and lumpy ice and chipped ice and the frost over it? A. That is right but I had to go up there because we had to take our garbage out and I had no place to put it.'

The plaintiff was never asked, either on direct or cross-examination, whether she slipped on the ice or where she was when she fell. No witness testified respecting these matters.

When she was found lying on the ground her feet were the part of her body nearest to the concrete platform, at a distance of about three feet. She has a medical history of having fainted and of dizziness. There is no evidence to the effect that she sustained a head injury when she fell. The defendant contends that the evidence points to the conclusion that plaintiff may have fainted or experienced a dizzy spell, causing her to fall. However, the plaintiff is entitled to have the evidence construed most favorably to her, and she is entitled to the benefit of all reasonable inferences. The jury could reasonably infer that plaintiff slipped on the ice, causing her to fall. Proof of slipping on the ice is not enough to maintain her action. One additional fact is lacking. What was the position of the plaintiff when she fell? In view of the evidence respecting the place where she was found on the ground, the place where she fell is not definite, and there is no direct evidence on this factual issue. In drawing an inference that she fell while using the cement platform, the court would be required to base an inference upon an inference. This is not permitted. 21 Ohio Jurisprudence (2d), 112, Section 106. Being unwilling to rest this case solely on this point of law, which some courts reject and others reluctantly approve, we proceed to discuss and determine the matters on which the trial court relied in directing the verdict, i. e., whether the plaintiff was guilty of negligence and assumed the risk.

The...