Walker v. S.H. Kress & Co.

• Decision Date: 29 January 1938
• Docket Number: 33619.
• Citation: 147 Kan. 48,75 P.2d 820
• Parties: WALKER v. S. H. KRESS & CO. et al.
• Court: Kansas Supreme Court

75 P.2d 820

147 Kan. 48

WALKER v. S. H. KRESS & CO. et al.

No. 33619.

Supreme Court of Kansas

January 29, 1938

Syllabus by the Court.

A storekeeper is not an insurer of the safety of his customers.

The oiling of the floor of a store by a storekeeper is not negligence per se.

In passing on demurrers, court was required to view plaintiff's evidence in the light most favorable to her and to allow all reasonable inferences in her favor.

In action by customer for injuries sustained in fall on floor of store, evidence that floor had been freshly or heavily oiled and was slick, that customer, while wearing low-heeled shoes and while walking in an ordinary manner, slipped and fell and that there was a streak about two feet long on the floor held sufficient to take case to jury, notwithstanding that there was no showing that storekeeper or general manager failed to exercise due care in oiling floor.

Where jury was unable to agree and a mistrial was declared, and defendants appealed from the overruling of a demurrer to plaintiff's evidence, plaintiff, who had otherwise complied with the requirements of the statute for a cross-appeal, was not precluded from having a review, on cross-appeal, of orders excluding testimony merely because she filed no motion for new trial. Gen.St.1935, 60-3001 60-3302; Laws 1937, c. 268, § 4.

The mere fact that plaintiff had a right of review of rulings excluding testimony did not relieve her from duty of presenting excluded evidence to trial court in such form as to enable that court and the Supreme Court to intelligently pass on its admissibility.

In action by a customer for injuries sustained in fall on floor of store, testimony of witness concerning condition of oiled floor on different date than that on which accident occurred was competent only on showing of similarity of condition of floor on respective dates.

1. A storekeeper is not an insurer of the safety of his customers, and it is not negligence per se to oil a floor.

2. In passing on a demurrer to evidence the court is required to view the evidence in the light most favorable to the party adducing it, and to allow all reasonable inferences in favor of such party.

3. Where a floor in a store was shown to have been freshly or heavily oiled and to have been very slick when a woman who wore low-heeled shoes and while walking in an ordinary manner slipped and fell on the floor, making marks thereon three-fourths of an inch wide and from eighteen inches to two feet in length, and struck the floor not only with her shoulders, but also with her head, it was not error to overrule a demurrer to her evidence because she had not shown in what particular details the storekeeper or its general manager had failed to exercise due care in oiling the floor.

4. Where a jury is unable to agree and a mistrial is declared and a demurrer to plaintiff's evidence has been overruled, from which ruling the defendants appeal, the plaintiff is not precluded from having a review, on a cross-appeal, of orders excluding testimony, simply because she filed no motion for a new trial, when she has otherwise complied with the requirements of the statute for a cross-appeal.

5. In order for rulings excluding testimony to be reviewable, where there was no opportunity to present such testimony in support of a motion for a new trial, the record must nevertheless sufficiently disclose the testimony of the witness and the rulings thereon to enable the trial court and this court to properly pass thereon, and a mere general proffer by counsel to the court of what he hopes to prove by the witness is not sufficient.

6. In order for testimony of a witness to be competent, concerning the condition of an oiled floor on a different date than that on which the accident occurred, it is necessary that similarity of condition on the respective dates be shown.

Appeal from District Court, Crawford County; L. M. Resler, Judge.

Action by Louanna Walker against S. H. Kress & Co. and another for personal injuries, wherein the jury was unable to agree and a mistrial was declared. From the rulings, the defendants appeal, and the plaintiff cross-appeals.

Affirmed in part.

P. E. Nulton and R. L. Letton, both of Pittsburg, for appellants.

John W. Hamilton and Fred A. Walker, both of Columbus, Lawrence Walker, of Pittsburg, and E. B. Morgan, of Galena, for appellee and cross-appellant.

WEDELL Justice.

This was an action to recover damages for personal injuries alleged to have been sustained by plaintiff, a customer in defendant's store, as a result of a fall on a slippery floor. The jury was unable to agree and a mistrial was declared. The defendants, S. H. Kress & Co., and Vern Decker, its general manager, filed separate general demurrers to plaintiff's evidence which were overruled. From those rulings the defendants appeal.

The defendants contend plaintiff's evidence was insufficient to establish the charge of negligence. The material allegations of negligence were:

"That said floor at said time and place had been recently covered with a thick coating of oil, making the floor, at the place where she slipped and fell, slippery and dangerous--

"That said injuries and her consequent physical condition are the direct and proximate result of the carelessness and negligence of the defendants and each of them concurring therein, in placing on said floor large quantities of oil and rendering said floor and aisle in said store slick, slippery and dangerous to the life and limb of the customers of said store, including this plaintiff, and knowing said aisle to be in such dangerous condition, negligently and with wanton disregard for the safety of persons, including this plaintiff, trading in or entering said store, permitted them to use said aisle notwithstanding the danger which they knew, or in the exercise of due diligence could have known, was involved in the use thereof."

The answer admitted the defendant Decker was the general manager of S. H. Kress & Co., it contained a general denial, and alleged the proximate cause of plaintiff's injury was her own negligence.

Was the evidence sufficient to take the case to the jury? Plaintiff was accompanied to the store by her daughter, Lorene Walker. The material portion of her daughter's testimony was in substance as follows: She lived at Weir, and was deputy clerk of the district court of Cherokee county; she and her mother entered defendant's store at about 8 o'clock in the evening of October 12, 1935, to purchase a dog collar; they entered the store from the east and walked west in the second aisle from the south; she preceded her mother by probably three or four feet; they were in no rush; they had passed the first section of counters when she heard somebody slip, and when she turned around, her mother was lying in the middle of the aisle on her back with her head to the west; she did not see her mother fall, but immediately went back to help her; a man standing in the aisle helped her mother to a sitting position; a girl who worked in the store also helped her mother; she first saw the defendant Decker, the manager of the Kress store, that evening in the anteroom; her mother was assisted to the back part of the store; she had a conversation with Mr. Decker, the pertinent portion of which was:

"A. Well, I didn't know who he was at the time, but he asked me what happened and I said 'my mother slipped on the floor.' He said 'She did?' and I says, 'Yes, your floors are oiled,' and he said 'Yes'--I don't know whether he said 'They were heavily oiled' or 'freshly oiled' but he made the remark that they were oiled floors.

"Q. Did he make any further statement in regard to the floor there? A. Yes, he told my brother that they were oiled.

"Q. Did he say anything about when they were oiled? A. No, if he said 'freshly oiled' I presume he said they were just oiled, but I don't recall whether he said 'freshly' or 'heavily.' "Q. He said either 'freshly oiled' or 'heavily oiled'? A. Yes, sir."

The witness returned to the place where her mother had fallen and observed a streak about three-quarters of an inch wide and possibly eighteen inches or two feet long; her mother was wearing Red Cross shoes; they were walking shoes and the heel was possibly a little more than an inch in height; her mother wore a blue spring coat; after the fall there were dirty spots on the back of her coat, nearly up to her shoulder; she felt of the spotted places on the coat; in her judgment the dirty spots on the coat were oil, her mother's hat had the same kind of dirt on it.

On cross-examination the same witness testified in substance: When she first saw her mother she was prone on the floor; at the time she had the conversation with Mr. Decker there were present, her mother, Mr. Decker, Rachel Walker, her sister-in-law, and one of the employees; she returned to the spot where her mother had fallen within about ten minutes after the fall, to see whether she had dropped any packages; her mother's heels contained leather heel caps; the aisle was open for traffic, and she saw nothing which prevented any one from using it.

Mrs Rachel Walker, a daughter-in-law of plaintiff, testified in substance: She did not see the accident; Lorene, the daughter of plaintiff, came to Short's Bootery Store to tell the witness' husband about her mother's fall and the witness went to the Kress store where she found the manager, another girl, and the plaintiff; Lorene, the daughter, went back with her; she had a conversation with the manager, which was related as follows: "Q. Will you just relate what was said in that conversation? A. Well, we were talking about the accident and he made the remark that the floor had been freshly oiled, and he said it was very...