Thalhimer Bros. Inc v. Casci

Decision Date16 March 1933
Citation168 S.E. 433
CourtVirginia Supreme Court
PartiesTHALHIMER BROS., Inc., v. CASCI.

Error to Law and Equity Court of City of Richmond.

Action by Carrie Casci against Thalhimer Bros., Inc. To review a judgment in favor of plaintiff, defendant brings error.

Reversed and rendered.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

Geo. E. Haw and R. E. Cabell, both of Richmond, for plaintiff in error.

John B. Lightfoot, Jr., and James A. Blake, both of Richmond, for defendant in error.

HOLT, Justice.

Using the designations, plaintiff and defendant, as used in the court below, it appears that the defendant is a corporation, and operates a department store on Broad street, in the city of Richmond. To it the plaintiff, on Easter Saturday, April 5, 1930, went shopping. While there she fell and was hurt. An action for damages was afterwards brought. There was a verdict, confirmed by the trial court, in the sum of $7,500. That judgment is now before us on a writ of error.

Plaintiff, with her niece and young daughter, went into the basement department of the store, and first into its western part, that they might try on some garments which seemed to please them. This they did in small dressing rooms along an aisle by the west wall, cut off from the room itself by packing cases.

Afterwards they came back into the main room and into the cloak department. Mrs. Casci then asked Miss Parrish, an employee, about the location of a toilet. Miss Parrish said that she told her there was one on the next floor, maintained for customers, but that the one in the basement was for employees only. Mrs. Casci's statement is that she was told nothing about the character of the toilets on the different floors, and of course we must accept her testimony as to this.

This is her account of the situation and its incidents so far: "Well, we went down in the basement. We came in from the Broad street side and came down the steps, went over to the suit department and tried on suits, but they didn't like them. So we went over and looked at the coats and while I was up there I asked Miss Parrish was it a ladies' toilet on that floor and she told me I could go over that way (indicating) and the girl over there would show me where to go. So I went over there and asked the girl about the ladies' toilet and she told me it was one on the next floor and a girl in the back of me--I don't know who she was * * * said, I don't see why she couldn't go where other people go back there.' So this young lady directed me to go back to where was the sign 'Basement' and turn to my left. So I went back and turned to my left and opened the door and I stepped in and when I stepped in of course I was gone. I didn't have nothing to stand on and I went right down."

Notwithstanding this conflict between testimony of Miss Parrish and Mrs. Casci, it is plain from the plaintiff's own statement that she was directed to a place not primarily intended for customers.

Next to be described is the place towards which she went. Along the east wall and near its center is an alcove office, projecting into the room. To its north is an aisle 22 or 23 inches wide, where employees were accustomed to hang their coats and hats, and in which rubbish was sometimes temporarily placed. It is separated from the room itself by packing cases with boards on their tops, reaching nearly to the ceiling. To the south and separated from the north aisle by the alcove office is another aisle which also runs along the east wall and which is also cut off from the main room somewhat as is the north aisle. It is about 3 feet wide. Opening into it from the wall are three toilets, one marked "White Women, " one "Colored Women" and one "Colored Men"--this in conformity with the statute, Code, § 1822. About flush with the alcove office to the north and between packing cases is the entrance to the north aisle and from 5 to 8 feet north of it is a door in the wall which opens towards the office and which gives access to a ventilator shaft into which the plaintiff fell. These two entrances to these aisles are about 15 feet apart, and the south entrance is from 7 to 9 feet from the south side of the alcove office.

To the right of the alcove office as we face east was a sign "Basement Drapery Department, " but plaintiff said that from where she stood she could only see a part of the word "Basement." Whether that sign was against the packing cases which made up the west wall of the south aisle or against the wall itself, is not entirely clear. Plaintiff said that it was "right up against the wall, " but the wall itself was in a large measure shut off by packing cases which made up the south aisle's west wall. There is also some confusion in the evidence as to the character of the entrances to these two aisles, but this is of small moment since plaintiff never saw the south entrance. It is somewhat wider than that to the north.

The eastern floor of this basement room is about two steps above the level of its western part. Plaintiff, when directions were first given her, stood at the foot of these steps. Their center is sightly north of the north wall of the alcove office and about 100 feet away. When asked if she went to the sign "Basement, " she answered that she went towards it; that she walked "straight on back." If she did this, she never reached that sign at all but went directly to the entrance to the north aisle and 6 to 8 feet north of the north end of the sign. The aisle into which she turned, as we have seen, is quite narrow, so narrow that she had to pass the door be fore she undertook to open it. The door Itself is flush with the wall and unmarked, is mahogany finished, and has a glass door knob. Quarters were so cramped that before she could be moved it was necessary to take the door from its hinges. When opened the pit was dark and into it she stepped and fell.

She was asked why she failed to take any precaution. Her answer was, "I didn't think anything. I just opened the door and before I could catch myself nor anything this foot was gone in." Manifestly she was in a hurry. She was asked if she was excited, and she answered, "I suppose so." It thus appears from her own testimony that she did not go to the "Basement" or to the "Basement Drapery" sign, or to any entrance by it, and, if this sign was hanging where she said it was hanging, she went nowhere near it. She was told to go to the "Basement" sign and turn to her left, and instead of doing so merely went straight back and turned to her left. The entrance to which she was directed and the aisle into which it opened are both to the south of the office and to her right as she faced east. To go straight back from where she stood she must have walked down an aisle which led to the north entrance, from which, as we have seen, she turned to her left. In other words, she did not go where she was told to go. In any event, the slightest attention to her surroundings would have been sufficient to have put her on notice had she not been excited. She found herself in an aisle only 22 or 23 inches wide, and not wide enough to permit the door opening into it to be fully opened--the door was wider than the aisle. When it was open it opened into darkness. By her own statement she did not even undertake to look, but thoughtlessly stepped into an open pit.

In Hospital of St.. Vincent of Paul v. Thompson, 116 Va. 101, 81 S. E. 13, 51 L. R. A. (N. S.) 1025, it was said that the conditions at and surrounding a door in themselves constituted an invitation to enter. By the same token here they should have put her on guard.

This case, like most cases, decides itself when the facts have been sifted out. Plaintiff knew that she was being directed to a place where customers were not sent except in emergencies. But whether she knew this or not, she did not go where she was told to go, but into a place which was not a public part of this storeroom. Manifestly she was not an invitee if she went where she was not invited, and she was not a licensee if she went where she had no license to go. The utmost that we can say is that she was but a bare licensee--perhaps it would be more accurate to say that she was an unwitting...

To continue reading

Request your trial
11 cases
  • Worrell v. Worrell
    • United States
    • Virginia Supreme Court
    • September 13, 1939
    ... ... Firmstone, 134 Va. 450, 114 S.E. 652; Thalhimer Brothers v. Casci, 160 Va. 439, 168 S.E. 433, and related cases. Without ruling upon the ... ...
  • Worrell v. Worrell, Record No. 2125.
    • United States
    • Virginia Supreme Court
    • September 13, 1939
    ... ... 450, 114 S.E. 652; Thalhimer Brothers Casci, 160 Va. 439, 168 S.E. 433, and related cases ...          1 Without ... ...
  • South Hill Motor Co. v. Gordon
    • United States
    • Virginia Supreme Court
    • January 9, 1939
    ...evidence discloses that he was guilty of contributory negligence as an efficient and proximate cause of the collision. Thalhimer Bros Casci, 160 Va. 439, 168 S.E. 433; Chakales Djiovanides, 161 Va. 48, 170 S.E. 848; Virginia Electric & Power Co. Vellines, 162 Va. 671, 175 S.E. 35; Bassett &......
  • South Hill Motor Co. Inc v. Gordon
    • United States
    • Virginia Supreme Court
    • January 9, 1939
    ... ... Thalhimer Bros. v. Casci, 160 Va. 439, 168 S.E. 433; Chakales v. Djiovanides, 161 Va. 48, 170 S.E. 848; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT