Surface v. Safeway Stores

• Decision Date: 21 September 1948
• Docket Number: No. 13697.,13697.
• Citation: 169 F.2d 937
• Parties: SURFACE v. SAFEWAY STORES, Inc.
• Court: U.S. Court of Appeals — Eighth Circuit

169 F.2d 937 (1948)

SURFACE v. SAFEWAY STORES, Inc.

No. 13697.

United States Court of Appeals Eighth Circuit.

September 1, 1948.

Rehearing Denied September 21, 1948.

Jack M. Pace and Dwight C. Perkins, both of Lincoln, Neb. (Mockett, Davies, Pace & Perkins, of Lincoln, Neb., on the brief), for appellant.

Flavel A. Wright, of Lincoln, Neb. (Cline, Williams & Wright, of Lincoln, Neb., on the brief), for appellee.

Before THOMAS, JOHNSEN, and RIDDICK, Circuit Judges.

JOHNSEN, Circuit Judge.

Ada B. Schumacher, a customer, 73 years of age, fell on the floor of one of the self-service grocery stores of The Safeway Stores, Inc., in Lincoln, Nebraska, and was injured. She claimed that the floor was slippery, from having been mopped some minutes before, and that this was the cause of her fall. She sued Safeway in negligence, under Nebraska law, but died before the case was tried, and the action was revived in the name of her Administrator. On a trial of the merits, the court at the close of the plaintiff's evidence directed a verdict for Safeway and dismissed the action, on the ground that Mrs. Schumacher before her fall had knowledge of the condition of the area, from having seen the mopping done, and that her act in stepping onto this part of the floor was therefore such contributory negligence as would bar a recovery. The Administrator has appealed.

Plaintiff's evidence on the conditions and events of the accident consisted of the testimony of Mrs. Gans, an employee of the store, and a deposition of Mrs. Schumacher which had been taken by the defendant some months after the accident.

Mrs. Gans's testimony showed that, during a mid-forenoon lull in the business, she had undertaken to mop the floor behind the checking counter at which she worked. This was part of her regular duty. The checking counter, where purchases of customers were checked, paid for and sacked, was a "U" shaped structure, approximately 10 feet in length, with a 44-inch opening at the end. On each side of the opening stood a magazine rack, extending out a foot beyond the ends of the counter. Mrs. Gans mopped the floor behind the counter and to the outer edge of the magazine racks.

She testified that she used a sponge mop and a bucket of water in which she had dissolved some ordinary soap powder. She dipped the mop in the water and ran it over a part of the floor; then she dipped it again and squeezed the water out of it by pressing it down on a perforated rack in the bucket, and once more ran it over the area; and she repeated this latter operation, thus going over the boards with the mop three times. She said that after these operations there was no water on the floor and no soap film or other deposit, and the boards were not wet or slippery but merely "damp to the feel" and "a little darker than the rest of the store, being damp."

Mrs. Gans was mopping the space between the magazine racks, she said, when Mrs. Schumacher entered the store. The two were acquainted, and Mrs. Schumacher came over to the checking counter to visit before commencing her shopping. Mrs. Gans went on finishing the mopping operations, and Mrs. Schumacher made some comment about the mop, which apparently was of a type that she had not previously seen. After chatting for a few minutes, Mrs. Schumacher moved away to select her purchases, and Mrs. Gans took the mop and bucket to the rear of the store. As Mrs. Gans was returning a few minutes later, she observed that two women were helping Mrs. Schumacher toward a table near the checking counter. Mrs. Schumacher said to her, "Alice, I slipped on your floor and fell", to which Mrs. Gans replied, "Why, Mrs. Schumacher, you stood right there and watched me wash the floor and you knew it was damp."

In her deposition, Mrs. Schumacher testified that only 5 or 6 minutes had elapsed from the time she entered the store until she fell; that in the brief interval that she visited with Mrs. Gans at the checking counter, she saw the latter rub a bar of yellow soap on the mop in going over the area between the magazine racks; that she "didn't pay any attention" to how the floor "looked" after the mopping was completed; that after her conversation with Mrs. Gans she went over to a display table to pick up some cheese, and thereafter to the vegetable stand, and then started back to the checking counter to pay for her purchases; that as she came to the checking counter she saw some candy bars on it and decided to get two; that "I just moved to get those candy bars and that was all I knew — I just went down"; that "I don't know whether I slipped; * * * my feet went out from under me, both of them, and I sat right down"; that as she started to step between the magazine racks, "I fell just where I stepped"; that "there was a mark where my heel kind of slid", which "was right there where I fell"; that after she fell she looked at the floor and "I thought it was dry"; and that there were no "wet spots or anything on the floor at that time" that she observed.

The trial judge in directing a verdict stated that he was doing so solely on the ground that in his opinion Mrs. Schumacher had been guilty of more than slight contributory negligence as a matter of law and that there therefore could be no recovery.

The Nebraska statute on contributory negligence, Neb.Rev.St.1943, § 25-1151, provides: "In all actions brought to recover damages for injuries to a person or to his property caused by negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury."

The Nebraska Supreme Court has held that, while under this statute the question of contributory negligence ordinarily is for the jury, there nevertheless is a duty to withdraw it from the jury's consideration, if no room reasonably exists on the evidence and the legitimate inferences therefrom for more than one conclusion. Zimmer v. Brandon, 134 Neb. 311, 278 N.W. 502. And so, under Nebraska law, the court in a negligence action is required to direct a verdict for the defendant, if the evidence shows beyond any reasonable dispute that the plaintiff has been guilty of contributory negligence and that such negligence is more than slight in its relationship. Thomison v. Buehler, 147 Neb. 811, 25 N.W.2d 391, 393. But if on all the evidence, reasonable minds might fairly differ in their conclusion as to the existence of contributory negligence or as to its degree being more than slight in the circumstances, the question is for the jury to determine. Frazier v. Anderson, 143 Neb. 905, 11 N.W.2d 764, 767.

The effect of the trial court's ruling, that Mrs. Schumacher was guilty of contributory negligence more than slight in stepping onto the area between the magazine racks, when she had witnessed the mopping done, necessarily was to hold that she was guilty of such negligence within any condition that the floor could be found from the evidence to have been in at the time of the accident. But if the floor on ordinary observation appeared to be dry, as could be found from Mrs. Schumacher's testimony to be the fact, we do not believe that it would be possible to declare as a matter of law that reasonable-minded men would all agree that, because she had seen the mopping done, Mrs. Schumacher was not acting as a customer of ordinary prudence in stepping onto the area to get some goods, when the mopping operations never had left the boards wet but merely damp, when the operator of the store had allowed the space to remain open as being safe for regular use, and when, on the evidence, up to approximately 6 minutes could be found to have elapsed since the mopping was done, with the floor then looking dry.

It seems to us therefore that it was error to direct a verdict on the basis of Mrs. Schumacher's contributory negligence. And even if the evidence should have been conclusive that the floor at the time still actually was "a little darker than...