Thalhimer Bros. v. Buckner

• Decision Date: 08 June 1953
• Citation: 194 Va. 1011,76 S.E.2d 215
• Parties: THALHIMER BROTHERS, INCORPORATED v. INEZ JAMES BUCKNER
• Court: Virginia Supreme Court

Page 215

76 S.E.2d 215

194 Va. 1011

THALHIMER BROTHERS, INCORPORATED v. INEZ JAMES BUCKNER.

Supreme Court of Appeals of Virginia

June 8, 1953.

Moncure & Cabell, for plaintiff in error.

Robert Lewis Young, Leith S. Bremner, Chas. H. Wilson, for defendant in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Mrs. Buckner brought this action against Thalhimer Brothers, Incorporated, to recover damages for injury sustained by her in the tearoom operated by the defendant in its department store in Richmond, where she had gone with a friend to have lunch. A jury returned a verdict in her favor for $1,800 on which the court entered judgment. On this appeal the defendant contends that she was not entitled to recover because the evidence did not disclose any negligence on its part but showed instead that the accident was due to the plaintiff's negligence. The plaintiff assigned cross-error claiming that she should have recovered more.

The evidence, with such conflicts as developed having been settled by the verdict in favor of the plaintiff, made this case:

The plaintiff, 67 years old, acompanied by her guest, arrived at the tearoom between 12:30 and 1:30 p.m. There was not a very large crowd there at the time. The hostess or dining room supervisor met them, led them to tables and seated them.

The design and arrangement of these tables are shown by photographs in evidence and one of the tables was before us in the argument. They are individual tables arranged in a row, with square or rectangular tops. Customers sit behind them on a long bench or couch against the wall. The tables are of metal and each weighs 25 pounds 3 ounces. Each has four legs joined to the top of the table at its four corners. The two legs at each end curve slightly toward each other and then out again, but no part of any leg projects past a straight line from the corner to the floor. The food is brought out in dishes and placed on a tray which sits between rubber knobs attached to the four corners of the table. The tables are ordinarily placed about nine inches apart but the customers move them closer together or farther apart as they desire. Plaintiff's friend was seated on her right, two of her witnesses immediately to her left, and the tables at which these four were seated were then close together. The floor of the dining room is carpeted.

In order to seat people behind the tables the hostess or waitress customarily pulls the table out and then pushes it back when the customer is seated, as was done in this instance. Usually the customers move the tables out when they are ready to leave, but this is done for them by the hostess or waitress on request. The plaintiff did not remember that she had ever moved one before.

The tables at which the plaintiff and her friend were seated had soiled dishes on them. After they had been seated for sometime without being served, the plaintiff's friend looked at her watch and remarked, 'We have been here about twenty minutes. ' The plaintiff tried to attract the attention of a hostess or a waitress but was unable to do so. She thereupon got up, pushed the table out, which she said was difficult for her to do, turned to her right, caught her foot on the left back leg of the table, fell and broke her hip. As a result she has a permanent disability, has suffered severely and incurred expenses in excess of $1,200.

But whether the defendant is to be held responsible for plaintiff's injury depends on whether, on the facts stated and others to be stated, it was guilty of negligence which was the sole proximate cause of the accident. The jury has decided the issues for the plaintiff and its verdict has been approved by the trial court, but if the judgment is plainly wrong or without evidence to support it, it is our duty to set it aside. Code, 1950, § 8-491; Esso Standard Oil Co. v. Stewart, 190 Va. 949, 951, 59 S.E.2d 67.

'Insufficient evidence is, in legal contemplation, no evidence. If there is no evidence that ought reasonably to satisfy a jury that the fact sought to be proved is established, then no jury question is presented. * * * Whether there is sufficient proof to sustain the claim of the party upon whom the burden of proof rests is a law question. ' Acme Markets v. Remschel, 181 Va. 171, 178-9, 24 S.E.2d 430, 434.

Plaintiff was an invitee of the defendant. The defendant was not an insurer of her safety but owed her the duty to exercise ordinary care to see that its premises and equipment were in a reasonably safe condition for her use in the manner and to the extent that it invited their use. Pettyjohn & Sons v. Basham, 126 Va. 72, 78, 100 S.E. 813, 815; Virginia, etc., Co. v. Perkey's Adm'r, 143 Va. 168, 179, 130 S.E. 403, 406; Knight v. Moore, 179 Va. 139, 145-6, 18 S.E.2d 266, 269; Acme Markets v. Remschel, supra, 181 Va. at pp. 176-7, 24 S.E.2d at p. 433.

We can see no indication of any negligence in the design of the table furnished to the plaintiff for her use. There is no contradiction of defendant's evidence that it is the 'same type of table with maybe a few modifications, but still having the four legs and the same type of top, that is used in various stores throughout the country,' the same type as used in the large department stores in Washington, New York and Boston. The evidence indicates nothing in the design of the table that suggests any danger in using it. There is nothing in the evidence or in the appearance of the table to suggest the probability that it would cause anybody to fall any more than any other table with legs. Nor could there be any daner in the way the tables were arranged unless it came from careless handling.

Plaintiff was asked, 'If you had pushed the table a little bit further, you would not have fallen, would you? ' She answered, 'I don't know. You see, the legs of these spread out so -- (indicating on table). ' Actually they do not spread out beyond the corners of the table and if the leg she tripped over had been perfectly straight she could just as readily have caught her foot by moving the table as she did and stepping as she did.

The owner of premises ought not to be held accountable for the negligent or wrongful use by his invitee of appliances which are safe and harmless if used for the purpose and in the way intended, unless he should reasonably have anticipated the improper use.

An accident which is not reasonably to be foreseen by a man in the exercise of ordinary caution and prudence may not be made the ground of a negligence action. Stephens...