Walker v. Weymouth

• Decision Date: 13 September 1958
• Citation: 154 Me. 138,145 A.2d 90
• Parties: Elizabeth WALKER v. Merle P. WEYMOUTH and A. J. Weymouth, d/b/a Sunset Lodge on Green Lake. George A. WALKER v. Merle P. WEYMOUTH et al.
• Court: Maine Supreme Court

Page 90

145 A.2d 90

154 Me. 138

Elizabeth WALKER v. Merle P. WEYMOUTH and A. J. Weymouth, d/b/a Sunset Lodge on

Green Lake.

George A. WALKER v. Merle P. WEYMOUTH et al.

Supreme Judicial Court of Maine.

Sept. 13, 1958.

Milton Beverage, Bangor, for plaintiffs.

Silsby & Silsby, Herbert T. Silsby, II, Ellsworth, for defendants.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD and SIDDALL, JJ.

SIDDALL, Justice.

These cases were tried together before a jury. One case was instituted by Elizabeth Walker to recover damages for injuries suffered by her; the other by her husband to recover the expenses incident to his wife's injuries, and for loss of consortium. At the conclusion of the evidence counsel for the defendants in each case moved for a directed verdict. The motions were granted and verdicts were directed. The cases come before this court on plaintiffs' exceptions to the directed verdicts.

The writs charge that the plaintiffs were paying guests occupying a cabin owned and operated by the defendants d/b/a Sunset Lodge on Green Lake, and that the plaintiff, Elizabeth Walker, was injured by slipping or tripping over a hidden rock on the premises. We believe that a fair analysis of the allegations in the writs indicates that the plaintiffs claim the defendants were negligent in one or more of the following respects, viz.: (1) that the defendants allowed the grass in the area in which the injuries occurred to be uncut for a period of time so that said grass grew to a height to cover dangerous rocks lying on said grassed area; (2) that the defendants failed to keep loose rocks removed from the premises; (3) that the plaintiff, Elizabeth Walker, fell on a rock which the defendants allowed to remain in a grassed area and allowed the grass in said area to grow high enough to hide the rock.

The record fails to show that the defendant A. J. Weymouth owned or operated the property, had possession thereof, or exercised any control whatever over the premises. Under these circumstances, we find that no liability can be imposed upon him.

We now consider the cases against the remaining defendant, Merle P. Weymouth.

The testimony bearing upon liability in the cases was brief and undisputed. No evidence was offered by the defendants. The evidence indicates that the plaintiffs on the 27th day of July, 1956, were paying guests at certain overnight or tourist cabins, so called, operated by the defendant Merle P. Weymouth. Said plaintiffs had been guests at these cabins at some period of time during each year for some 13 years. Elizabeth Walker had been to the ladies' room on the day of the accident and had started to walk toward her husband's car. She felt something under her foot and fell. The area where she fell was grassed and some of it was cut and some not cut. Some was long and some short. She fell at a point about 25 or 30 ft. in front of one of the cabins and approximately midway between the cabin and a driveway. The accident happened at about 1:30 o'clock in the afternoon, and the plaintiff, George A. Walker, who came to his wife's relief after the fall, noticed a stone 'in between where her body was laying, right near her elbow.' During the evening of the same day Mr. Walker in the presence of the defendant Merle P. Weymouth found at the place where Mrs. Walker fell a white colored and jagged stone about the size of a hen's egg or small tennis ball. Mr. Walker testified that the stone found was the one he saw after his wife's fall. He further testified that the area in which his wife was injured was more like a hayfield and that the grass had been cut by a machine which 'slung all that stuff around like bales of hay.' He also testified that 'there was a lot of bunches of newly-mown hay,' and that 'it wasn't a grass patch like it is now, more of a hay patch before then.' As a result of her fall, Elizabeth Walker suffered painful injuries, including a dislocated elbow, a fracture of the radius at the elbow joint and other injuries.

The evidence viewed in a manner most favorable to the plaintiffs is sufficient to establish that the plaintiffs' legal status at the time of the injury to Elizabeth Walker was that of invitees as to that part of the premises of the defendant where Mrs. Walker's injuries occurred.

As the operator of overnight or tourist camps, the defendant's duty to the plaintiffs was the same as that of the owner of a business toward his patrons on the premises by invitation of such owner. The defendant was not an insurer of the safety of the plaintiffs. His duty was to use reasonable, ordinary, or due care to keep the premises upon which the plaintiffs were expressly or impliedly invited in a reasonably safe condition for their use. In the instant cases the issue is not whether the premises were reasonably safe, but rather whether the defendant failed to use reasonable, ordinary, or due care to keep the premises reasonably safe under the particular circumstances of the cases as disclosed by the evidence.

In the case of Lander v. Sears, Roebuck & Co., 141 Me. 422, 424, 44 A.2d 886, 887, a case involving injuries sustained in a fall by a customer in the defendant's store, the law relating to the duties of the owner is well defined in the following language:

'The applicable law is established. It is stated with great clarity in an annotation covering more than 50 pages commencing at 100 A.L.R. 710, at page 711: 'The proprietor of a store or shop owes a duty to his invitees to exercise reasonable, ordinary, or due care to keep his premises reasonably safe for their use.'

'This is consistent with the statement of the rule set forth in 38 Am.Jur. 754, Par. 96, and with many decided cases cited in the annotation aforesaid and in a footnote to that text. It has been declared the law in this jurisdiction. Thornton v. Maine State Agricultural Society, 97 Me. 108, 53 A. 979, 94 Am.St.Rep. 488; Graffam v. Saco Grange Patrons of Husbandry, 112 Me. 508, 92 A. 649, L.R.C.1915C, 632. A storekeeper is not held to insure his patrons against injury while on his premises. S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Bader v. Great Atlantic & Pacific Tea Co., 112 N.J.L. 241, 169 A. 687. The distinction between his duty and that of an insurer was well drawn by Mr. Justice Farrington in Charpentier v. Great Atlantic & Pacific Tea Co., 130 Me. 423, 157 A. 237, 238, when he said, in speaking of the duty of a railroad to its employees: 'It does not undertake to provide a reasonably safe place * * *, but it does undertake to use due care to do so, and that is the measure of its duty.''

See also Buck v. Maine Central Trans. Co., 151 Me. 280, 282, 118 A.2d 330 (dictum); 65 C.J.S. Negligence § 45, p. 521; 162 A.L.R. 949.

The same rule of duty has been applied to cases involving invitees of the...