Straley v. Keltner
| Decision Date | 20 May 1959 |
| Citation | 109 Ohio App. 51,164 N.E.2d 186 |
| Parties | , 10 O.O.2d 214 STRALEY, Appellant, v. KELTNER et al., Appellees. |
| Court | Ohio Court of Appeals |
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.
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:
On cross-examination, the plaintiff testified as follows:
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...
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