Torbet v. F. W. Woolworth Co.
| Decision Date | 05 October 1931 |
| Docket Number | No. 7109.,7109. |
| Citation | 59 S.D. 47,238 N.W. 140 |
| Parties | TORBET v. F. W. WOOLWORTH CO. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Davison County; H. R. Hanley, Judge.
Action by Minnie Torbet against the F. W. Woolworth Company. Judgment for plaintiff, and defendant appeals.
Reversed.Cherry, Davenport & Braithwaite, of Sioux Falls, for appellant.
H. G. Giddings, of Mitchell, for respondent.
F. W. Woolworth Company, a corporation, conducts a certain retail store for the sale of merchandise to the public at Mitchell, S. D. On Tuesday, the 24th day of October, the plaintiff, Minnie Torbet, entered the store, at the south entrance, for the purpose of purchasing merchandise from the appellant. She walked east through one of the aisles; close to the east end of the store, she inquired about certain notions, and was there told to go back to a certain counter where she could find the merchandise she wanted. She walked to the place, and completed her purchases and started to walk out, headed west, in the aisle where the customers walk. After walking a couple of steps, she slipped and fell upon the floor, and suffered a partial impacted fracture of the surgical neck of the left femur.
She brought action for damages in the circuit court, and at the time of the trial in February, 1930, the plaintiff was 68 years of age.
The plaintiff testified that she slipped and fell on her left hip, that a couple of girls helped raise her up, that she was placed upon a chair, and then taken to the back room. A doctor was called who rendered first aid assistance, and she was afterwards placed in the hospital, where the fracture was reduced.
During the trial she was asked if she noticed the condition of the floor at the point where she fell. She stated that it looked oily. Upon closer questioning, she said, “Well, it looked awful oily that is all,” and she also stated “that it was light in there, yes day-light.” She was asked, “Did you see any spot or pool of oil?” “I didn't pay any attention to that.” “You didn't see any pool of oil, did you?” “No, I didn't.” She further stated, “as far as I saw it looked awful oily.” “And there wasn't any difference in one spot and another was there?”
Mrs. Winter, the respondent's daughter, stated in her examination, She testified to a couple of marks on the floor and also as to the condition of respondent's clothing to the effect that they were dirty on the side she fell. “The left side, it was covered with oil and some had come through to the underclothing.” She also testified that she burned the worst part of the dress and that the other part had been used and some of it cleaned with gas. The garments were not produced as evidence. The testimony given by the plaintiffs were to the effect that the floor was of an oily appearance. The strongest testimony was to the effect that it looked like a wet spot on the floor. One of the witnesses testified as follows:
Dr. Malloy, who was called, stated he noticed that the whole floor had been freshly oiled. He further explained as follows: “When I spoke of a floor appearing as if it had been freshly oiled I mean it had the appearance of a recently oiled floor.”
The defendant's and appellant's testimony is to the effect that the floor was oiled by one of its employees at 10:30 p. m., the Saturday preceding the accident, with a brand of oil known as Sinclair floor oil, and which was commonly used for that purpose by stores and schools, that the oil was just a little thicker than water, and that there was no lubricating quality in it. It was put on by being sprinkled down each aisle and across the ends. About one and one-third gallons of oil was put on, covering about 1,800 square feet of floor space, and that, after putting the oil on, a mop was used to even the oil over the floor so that no pools would be left on the floor.
The store was closed on Sunday. On Monday, a Valspar powder was sprinkled on the floor, which was left on all day, and was swept off Monday night. The witness testified that, when he swept it off Monday night, there were no wet or damp places left that he could notice. He also testified that the floor was not oiled between Saturday night and the time of the accident on Tuesday afternoon.
The defendant produced a number of witnesses who testified to making an examination of the floors immediately after the accident. Their testimony discloses the facts that a large number of people, somewhere between eight hundred and a thousand people passed through the store on Monday, and a proportionate number passed through on Tuesday before the accident happened, that the floor where the plaintiff fell was not slippery, and that there was no pool or excess oil upon the floor.
[1][2] At the close of plaintiff's evidence, the defendant moved for a directed verdict, which motion was also renewed at the close of all the evidence. Both motions were denied, and thereafter the issues were submitted to the jury upon the court's instructions which were not excepted to by the plaintiff. The defendant excepted to some of the instructions. However, there seems to have been very little disagreement between the parties as to the law governing the case. We find that the respondent quoted a portion of the court's charge from the appellant's brief, which is as follows: “The exact language of the charge and to which no exception was taken by either party and which appellant claims and we concede is the law of this case, was as follows: 'In this connection, gentlemen, in order for the plaintiff to be entitled to recover, you must be satisfied by a preponderance of the evidence that there was left on the floor by the defendant at the time the defendants oiled the floor an excess quantity of oil, and that...
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