Wyzga v. David Harley Co., 7946.
| Decision Date | 19 May 1938 |
| Docket Number | No. 7946.,7946. |
| Citation | 199 A. 452 |
| Parties | WYZGA v. DAVID HARLEY CO. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.
Action of trespass on the case for negligence by Anna Wyzga against the David Harley Company for injuries caused by plaintiff's falling on a stairway. To review orders denying plaintiffs motion for directed verdict and granting defendant's motion for a directed verdict, plaintiff brings exceptions.
Exceptions overruled and case remitted for entry of judgment on the verdict as directed.
George Roche, of Providence, for plaintiff. Sherwood & Clifford, Sidney Clifford, and Raymond E. Jordan, all of Providence, for defendant.
This is an action of trespass on the case for negligence. At the trial of the case in the superior court the defendant rested at the conclusion of the plaintiffs evidence and moved that the trial justice direct the jury to return a verdict in its favor. The plaintiff then moved that the trial justice direct the jury to find in her favor on the question of liability, and leave to the jury only the question of damages. The trial justice thereupon granted the defendant's motion and denied that of the plaintiff. She is now prosecuting her bill of exceptions in this court to the above rulings of the trial justice.
From the evidence it appears that the defendant conducts a department store in the city of Pawtucket. The plaintiff's contention is that she was a customer in said store and, while in the exercise of due care, fell and was injured when about to descend a stairway which extended from the second to the first floor of said store. The plaintiff's declaration is in one count and alleges that the defendant allowed the floor and stairs of the building wherein it operated its store to become worn and dangerous; that the defendant had or should have had notice of these defects and that such defects caused the plaintiff to fall and be injured.
Lack of notice or knowledge of the condition of the stairway at the time the accident happened is not relied upon by the defendant as a defense to the present action. Its attorney made the following statement at the trial of the case: "I am willing to go on record and say as far as the condition of that stair on May 2 was concerned, we knew the condition of the stair and so there is no question of either constructive or actual notice."
The plaintiff, in her testimony, did not describe in any way the condition of the floor or stairs at the time she fell. She gave evidence that on the day of the accident she did not notice the stairway particularly; that she had, a short time before the accident, ascended these stairs; that she had frequently purchased articles in the defendant's store and had used this stairway; that she noticed no change in the condition of the stairs on that day from what had been their condition previously when she had been in the store; and that the stairway was the same as it had been before.
The plaintiff, who testified that she fell when starting to descend the stairs from the second to the first floor, gave the following description of what happened:
The plaintiff at no time testified as to what caused her left foot to slip. In cross-examination she stated that there was no covering over the nose of the stair in question, but that there was rubber matting on the second floor of the store, which matting extended to within a short distance of the top step of the stairway.
Several friends of the plaintiff gave evidence that, after the accident, they went to the defendant's store and examined the stairway in question and especially the second floor at the point where the stairs were located. These examinations were made at times varying from three days to a few weeks after the accident. These witnesses all testified, in substance, that the stairs in question and the second floor of the building were of wood construction; that the board which was directly at the top of the stairs and was part of the second floor of the building was about one and one-quarter inches in thickness; that where people usually walked in using the stairs this board was worn at its outer edge, but not all the way across or near the sides of the stairs. They also testified that the board in question, when they viewed it, was worn at its edge "down to a point like," and "it was all sharp like," and that this condition extended back from the outer edge of the board a few inches. There was, however, no evidence that the depth of the board was completely worn through, or...
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