Woolworth Co. v. Kinney
| Decision Date | 11 December 1929 |
| Docket Number | 21749 |
| Citation | 169 N.E. 562,121 Ohio St. 462 |
| Parties | The F.W. Woolworth Co. v. Kinney. |
| Court | Ohio Supreme Court |
Supreme Court - Affirmances - Some evidence supporting petition, and evidence not weighed - Customer injured by slipping on confection on store floor - Negligence.
Messrs Kennedy, Manchester, Ford, Bennett & Powers, for plaintiff in error.
Messrs Knight & Cluck and Mr. Edward L. Williams, for defendant in error.
The parties appear here in the reverse position from that in which they appeared in the courts below.
The plaintiff, Mary A. Kinney, in her petition alleged that while she was a customer and an invitee of the defendant she slipped upon a piece of candy which the defendant had allowed to remain on the floor of its store, and because thereof fell and received injuries.
At the trial, she gave testimony tending to support the allegations of her petition and described the substance as either a piece of candy or chewing gum, of no appreciable thickness and of a diameter of about that of a silver dollar. She called witnesses who variously described the substance as the size of a "silver dollar bill" and of a diameter of two and one-half inches. She called a witness who testified that two days prior to the accident to the plaintiff, she slipped upon the same or a similar substance, at about the same place in the store.
A motion to direct a verdict was overruled, and at the close of all the evidence the motion was renewed and overruled, and the case was submitted to the jury under proper instructions. The jury rendered a verdict for the plaintiff, motion for new trial was overruled, and the Court of Appeals affirmed the judgment of the trial court.
Upon a review of the record, this court finds itself unable to say that there was no evidence tending to support the allegations of the petition, and, unless it were to adopt the practice of passing upon the weight of the evidence, it cannot do otherwise than affirm the judgments below, which is accordingly done.
Judgments affirmed.
MARSHALL C. J., dissenting. That this court will not weigh the evidence is a principle and practice so well established that if the case required that this court should weigh the evidence before reversing the judgment of the trial court there would be a unanimous concurrence in this judgment. Those who do not concur in the judgment are of the opinion that the case turns upon matters other than the weight of evidence. It is true that there is evidence tending to show that the substance on the floor of the storeroom and which was the basis of the claim for damages was on the floor for a period of at least two days, and the jury must have found that fact in order to agree upon a verdict for plaintiff. It may therefore be properly inferred that the sub- stance on the floor continued to remain on the floor two days, in the absence of any evidence tending to show its removal. If it therefore be regarded as a fact that it was on the floor two days earlier, the further inference might be indulged that the proprietor of the store knew of its existence on the date of the accident to Mrs. Kinney. This latter result has not been established by direct evidence and could only be found by the jury by drawing an inference that the proprietor knew of the substance being on the floor on the day of the accident, and this inference must be based upon the first inference that it was the same substance which was on the floor two days earlier and that the substance on the floor two days earlier remained on the floor until the time of the accident. Clearly therefore an inference must be based on an inference in order that the jury might properly find notice and knowledge to be chargeable to the proprietor. This principle has been condemned by the judgment of this court in Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N.E. , 634. Unless notice and knowledge on the part of the proprietor is proven, the judgment must fail.
Another ground of objection to the affirmance of the judgment is found in the conduct of the plaintiff herself. All the testimony shows that the substance, whatever it was, was...
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