Wade v. Three Sisters, Inc.

• Citation: 134 Ind.App. 58,186 N.E.2d 22
• Decision Date: 14 November 1962
• Docket Number: No. 19563,No. 2,19563,2
• Parties: Zola WADE, Appellant, v. THREE SISTERS, INC., Appellee
• Court: Indiana Appellate Court

Page 22

186 N.E.2d 22

134 Ind.App. 58

Zola WADE, Appellant, v. THREE SISTERS, INC., Appellee.

No. 19563.

Appellate Court of Indiana, Division No. 2.

Nov. 14, 1962.

William K. Bennett, Lafayette, for appellant.

Stanton Babcock, Lafayette, Stuart, Branigin, Ricks & Schilling, Lafayette, of counsel, for appellee.

PFAFF, Judge.

Appellant's action to recover damages for personal injuries suffered in a fall in the defendant-appellee's store resulted in a directed verdict for the appellee at the end of the plaintiff's evidence. The appellant's motion for a new trial based upon the granting of the directed verdict and peremptory instruction was denied, and judgment was entered on the verdict. The appellant contends that the evidence was sufficient to present a jury question.

The procedure for determining when a court may properly grant and give a peremptory instruction for the defendant has been developed in a long line of cases. One of the most recent decisions is Huttinger v. G. C. Murphy Company (1961), 131 Ind.App. 642, 172 N.E.2d 74. However the leading authority is Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 680, 122 N.E.2d 734, in which the Supreme Court set out certain 'compelling laws' of which a trial court must take cognizance prior to the direction of a verdict. The court will direct a verdict:

'When there is a total absence of evidence or legitimate inference in favor of the plaintiff upon an essential issue; or where the evidence is without conflict and is susceptible of but one inference and that inference is in favor of the defendant. Jackson Hill Coal & Cock Co. v. Bales [et al.], 1915, 183 Ind. 276, 279, 108 N.E. 692. Slinkard v. Babb, 1953, 125 Ind. App. 76, 112 N.E.2d 876, 878 , and cases there cited. , Gregory v. The Cleveland C., C. & I. R. Co., 112 Ind. 385, 388, 14 N.E.2d 228.

'* * * the court will not weight the conflicting evidence or inferences but will consider only the evidence and inferences that are most favorable to the party against whom the motion for a peremptory verdict is directed. Jackson Hill Coal & Coke Co. v. Bales [et al.], 1915, 183 Ind. 276, 280, 108 N.E. 962, supra; American Food Co. v. Halstead, 1905, 165 Ind. 633, 638, 76 N.E. 251. See also Heath v. Sheetz, 1905, 164 Ind. 665, 667, 74 N.E. 505. Slinkard v. Babb, 1953, 125 Ind.App. 76 , 112 N.E.2d 876, 878 , supra, and cases there cited.

'In determining whether a peremptory instruction should be given the court must accept as true all facts which the evidence tends to prove and draw, against the party requesting such instruction, all inferences which the jury might reasonably draw. Orey v. Mutual Life Insurance Company of New York, 1939, 215 Ind. 305, 306, 19 N.E.2d 547; Holtz v. Elgin, etc., Ry. Co., 1951, 121 Ind.App. 175, 98 N.E.2d 245; Chacker v. Marcus, 1949, 119 Ind.App. 672, 674, 86 N.E.2d 708, Id., 119 Ind.App. 679, 89 N.E.2d 455; Balzer v. Waring, 1911, 176 Ind. 585, 594, 95 N.E. 257, 48 L.R.A.,N.S., 834.'

The evidence must be examined in the light most favorable to the appellant since the appellee requested the peremptory instruction. The record evidence discloses that the appellant entered the appellee's women's retail apparel shop to purchase a dress. It took her approximately twenty to thirty minutes to select the dress. After she had chosen the dress and paid for it, she turned to leave the store and it was at this time that she slipped and fell. Appellant stated that she did not see any object on the floor before she slipped; that she saw the object after slipping; and that it was a foreign substance of a milky color. The appellant did not see any customers in the particular area of the store where she was injured bofore her actual fall. There is evidence that the appellant could not see this vicinity while she was in the dressing room and that at least part of the time her full attention was not directed to the spot where she fell.

Appellant contends that the evidence is sufficient to create a negative inference that either the substance was on the floor for thirty minutes or somehow one of appellee's employees caused it to be there. In either event appellant argues that a jury question as to breach of duty to an invitee is presented and that it is unimportant whether it was through an act of an employee or failure to inspect that the breach was created.

'* * * Courts have often been asked to exclude testimony based on what may be called negative knowledge, i. e., testimony that a fact did not occur, founded on the witness' failure to hear or see a fact which he would supposedly have heard or seen if it had occurred.

'Yet there is no inherent weakness in this kind of knowledge. It rests on the same data of the senses. It may even sometimes be stronger than affirmative impressions. The only requirement is that the witness should have been so situated that in the ordinary course of events he would have heard or seen the fact had it occurred.' 2 Wigmore on Evidence, § 664, p. 778 (3rd Ed.).

Indiana has dealt with negative inferences in several cases. Usually the issue dealt with was: Did the train whistle blow. Two of the cases involved the same crossing, but the courts distinguished the cases and arrived at different results. The first case was Hummel v. New York Cent. R. Co. (1946), 117 Ind.App. 22, 66 N.E.2d 901. In that case the appellant's witness testified that she did not hear the train whistle; however she admitted that she had grown accustomed to these whistles and never noticed them. The court held that a finding based on this testimony could be the result only of speculation, surmise and conjecture. Nine years later in the second case at the same crossing, Callahan, Admr., etc. v. New York Cent. R. R. Co. (1955), 125 Ind.App. 631, 125 N.E.2d 263, negative testimony was effectively used by the appellant. The court said that the testimony of two named witnesses was 'some evidence' which the jury might properly weight and consider in determining whether the signals were given. Hummel v. New York Cent. R. Co., supra, was adhered to as approving the general rule that the testimony of one that he did not hear the whistle, although he was near a crossing and in a situation to have heard it, is sufficient to support the inference that the warning signal was not given. The point of distinction is that in this latter case the witnesses, who gave the negative testimony, did not state that they had grown accustomed to train whistles so that they would not have heard a whistle in the ordinary course of events. A third train decision, Pennsylavania R. Co. v. Rizzo (1949), 119 Ind.App. 505, 86 N.E.2d 91, 87 N.E.2d 885, held that the testimony of the appellee's witness that he did not remember hearing the train's whistle and that he would not say that the train whistle blew or that it did not blow was insufficient to support the needed inference. The case was reversed and the appellant was granted a new trial.

In Antibus v. W. T. Grant Co. (1938), 297 Ill.App. 363, 17 N.E.2d 610, the Appellate Court of Illinois was confronted with a factual situation similar to the case before us. The appellant went to the appellee's dry goods store. As he descended to the basement, he met two women and a child coming up the stairway. He did not see a banana peeling at this time on the stairs. He remained in the basement approximately twenty minutes. On the way up the stairs, he slipped on a banana peel. Appellant testified: 'While I was down in the basement I did not see anyone using the stairway.' In addition he admitted that his back was toward the stairway for three or four minutes. While the court did not discuss negative inferences specifically, it held that this evidence was insufficient. It reversed a verdict for the appellant and stated that the appellee's motion for a directed verdict should have been granted.

It may be said, we think, in cases similar factually to the present one that the evidence is insufficient to...