Shumaker v. Charada Investment Co. , 183 Wash. 521 ( 1935 )

STEINERT, HOLCOMB, MITCHELL, and BLAKE, JJ., dissent. During the afternoon of October 23, 1933, plaintiff, Agnes Shumaker, while walking along an aisle in the public market owned and operated by defendant, Charada Investment Company, a corporation, slipped and fell, suffering injuries for which she seeks compensation in this action. Plaintiff contends that her accident was occasioned by the fact that the cement floor on which she was walking was wet; that this condition caused her to slip and fall; and that defendant was negligent in permitting the floor to become and remain wet and slippery, and consequently is liable to her for the injuries which she suffered.

Defendant, at the close of plaintiff's case, moved for a nonsuit; at the close of the evidence, it moved for judgment in its favor as matter of law; and, after the return of a verdict for the plaintiff, defendant moved for judgment notwithstanding the verdict; all of which motions were denied. From judgment entered in plaintiff's favor upon the verdict, defendant has appealed.

Error is assigned upon the rulings of the court above referred to, and upon the entry of judgment.

In support of its assignments of error, appellant advances two contentions: First, that the record contains no substantial evidence showing negligence on its part; and second, that it should be held as matter of law that respondent was guilty of contributory negligence. Our view of the law applicable to the facts disclosed by the record renders discussion of the second proposition unnecessary.

Appellant has for some time owned and operated a public market in the city of Tacoma, renting space therein to different merchants for display and sale of their wares. The establishment fronts on Market street, at its intersection with Eleventh street. Along the front of the market, were long narrow tables (used for the display of green vegetables), such as are commonly used for display of such produce, the line of tables being broken by passageways. Back of the tables was a wide aisle, running parallel to Market street, and, on the other side of this aisle, there were other stalls and counters facing on two long aisles lying perpendicular to Market street. Respondent fell somewhere in or very near the aisle lying back of the narrow tables in the front of the market, there being some dispute between respondent and one of her witnesses as to the exact point where respondent met with her accident.

It appears from testimony introduced on behalf of respondent that the vendors of fresh vegetables, whose places of business occupied the front of the market and bordered on the aisles upon one of which respondent fell, were accustomed to sprinkle water over their merchandise at frequent intervals, and that the floors in that part of the market were, as a result of this practice, often damp or even wet. In addition to using sprinkling cans, the vendors often washed celery and other vegetables in open tubs or buckets, which had a tendency to throw additional water on the floor. Appellant employed a manager, who had under him two janitors, one of whom was always on duty during market hours, whose business it was to keep the floors in good condition, picking up trash found thereon and sprinkling sawdust over wet spots and then sweeping the same away. It was not raining on the day of the accident, so any water which was on the floor must have come from within the market itself.

Respondent entered the market from an adjoining store. She testified that she proceeded down one of the long aisles toward Market street, stopping at a stall to make a purchase. The clerk being busy, respondent walked over toward the vegetable stands above referred to, when suddenly she slipped and fell violently to the floor. Respondent was assisted to a box, where she sat down, and while in that position, she saw that the floor where she had fallen was wet. Her feet had left a mark upon the floor, indicating where her foot had slipped.

The floors of the market were ordinary cement floors, and it is not contended that there was any unusual hazard incurred by patrons walking over them, respondent arguing only that the floor was slippery because at the place she fell it was wet.

There is some testimony in the record to the effect that appellant's agents had been advised of the fact that the floors of the market were frequently wet and were, in consequence, slippery. On the other hand, it is not disputed that appellant's employees devoted considerable time to cleaning and mopping the floors and generally caring for the comfort, safety and convenience of patrons of the market. From four to six thousand persons walked through the market each day, as many as twelve thousand visiting it on exceptionally busy days.

Respondent had visited the market on many occasions previous to the date of her injury, and had never noticed any water on the floor of the aisles near the point she fell. Respondent knows little of the accident which resulted in injuries to her, save that she slipped and fell, and that, after she had been assisted to a neighboring seat, she noticed that the spot where she fell was wet. It may be assumed that the floor of the market was often wet, as the result of the use of water by the merchants in freshening their wares, as above set forth. On rainy days, doubtless the floor would be wet both from seepage and from water carried in by patrons.

[1] It is true, as argued by respondent, that, in passing on a motion for judgment notwithstanding the verdict of a jury, no element of discretion is involved. Such a motion may be granted only when it can be judicially determined, as matter of law, that there is neither evidence nor reasonable inference from evidence to sustain the verdict. Nelson v. Booth Fisheries Co.,165 Wash. 521, 6 P.2d 388; Sears v. Lydon, 169 Wash. 92,13 P.2d 475; Reeve v. Arnoldo, 176 Wash. 679, 30 P.2d 943. It is also true that, in ruling on such a motion, the evidence will be viewed in the light most favorable to the party who won the verdict. Green v. Langnes, 177 Wash. 536, 32 P.2d 565.

[2] It is undoubtedly the law that one who operates a store or place for the general sale of merchandise invites the public to frequent his place of business, and that he owes to his patrons the duty to maintain his establishment in a reasonably safe condition. What is a reasonably safe condition, of course, depends upon the nature of the business conducted and the circumstances surrounding the particular situation. In the case of Stone v. Smith-Premier Typewriter Co., 48 Wash. 204,93 P. 209, this court laid down the rule as follows:

"The law requires a storekeeper to maintain his storeroom in such a condition as a reasonably careful and prudent storekeeper would deem sufficient to protect customers from danger while exercising ordinary care for their own safety."

In the case at bar, the jury inspected the premises and, of course, in returning their verdict, were entitled to consider the evidence in the case in the light of the knowledge which they gained during such examination.

Respondent relies upon the case of Wiard v. Market OperatingCorp., 178 Wash. 265, 34 P.2d 875, in which a recovery was allowed in favor of an invitee of a market, who slipped and fell on the floor of an auditorium in the market maintained by the owner for the benefit of his tenants. In the superior court, a jury returned a verdict for the plaintiff, which the trial court set aside in granting the defendant's motion for judgment notwithstanding such verdict. On plaintiff's appeal, this court reversed the judgment of dismissal and directed the entry of judgment on the verdict in plaintiff's favor. In the case cited, it appeared from the evidence that the auditorium was used as a lunch room, one end being equipped for cooking, the floor of the auditorium being covered with tables and chairs. The plaintiff testified that she slipped on a spot of grease, and this court held that evidence that the floor of such a room was in places greasy entitled the jury to pass upon the question of the negligence of the owner of the market. There was evidence to the effect that an employee of defendant had admitted that the floor was in a dangerous condition, and that food was often dropped thereon.

In the case at bar, an entirely different situation is presented. Assuming that the floor of the aisles in appellant's market was often damp or wet, can it be held that this constituted a dangerous condition, and one so liable to cause injury to appellant's patrons as to render appellant responsible to respondent in damages? Respondent testified that she had walked along the aisle upon which she fell on hundreds of occasions prior to the day she was hurt, and she was consequently thoroughly familiar with the situation. If the floor was wet, it must be held that she should have observed this condition. Respondent did not, as did the plaintiff in the Wiard case,supra, slip upon a small greasy spot, which she might well have not observed, but, on the contrary, respondent was at great pains to prove that much of the floor of the market was generally wet, and, indeed, that this was its common and ordinary condition.

In the case of Cornwell v. Kresge Co., 112 W. Va. 237,164 S.E. 156, the supreme court of West Virginia denied recovery to a woman who suffered a fractured wrist as the result of a fall on a wet and oily floor in a store which she had visited as a customer. The court of errors and appeals of New Jersey, in the case of Abt v. Leeds Lippincott Co., 109 N.J.L. 311,162 A. 525, denied recovery to a guest of a hotel, who, while descending a flight of stairs, which it was testified were waxed and highly polished and very slippery, fell and was injured. The court held that, there being no evidence that the stairs were improperly constructed, that the waxing or polishing was improper, or that the stairs had been left in any other condition than is usual in waxed or polished stairs or floors, the plaintiff could not maintain her action.

In the case of Bridgford v. Stewart Dry Goods Co., 191 Ky. 557,231 S.W. 22, the court of appeals of Kentucky denied recovery to a patron of a department store, who slipped and fell on a wet basement floor, which, she contended, was in an unsafe condition and which she should have been warned not to use. In the case cited, it appeared that the water had been thrown upon the floor without fault of the owner of the premises, but the court held that the plaintiff could not recover, she having noticed that the floor was moist before she attempted to walk thereon. In the course of its opinion, the court said:

"Certain it is that the mere fact the floor was moist or damp did not render it so dangerous as to require of defendant in the exercise of ordinary care for the safety of its customers that it should place barricades across the entrance to the basement and prevent its use altogether until the floor was entirely dried out. We are inclined to the opinion that proof simply that an ordinary wood floor in a well lighted room is moist or damp is no evidence that it is not in a reasonably safe condition for use, but, if mistaken in that, we are quite sure that one who uses such a floor with full knowledge of its condition assumes any and all risks incident to its use. We are therefore of the opinion that the trial court did not err in directing a verdict in favor of the defendant."

In the case of Kraus v. Wolf, 253 N.Y. 300, 171 N.E. 63, the court of appeals of New York held that

"A small pool of water in a slight depression, caused by wear, on the surface of an outdoor step, creates no dangerous condition, and reasonable care did not require the defendant to prevent or remedy such condition,"

and reversed a judgment entered upon the verdict of a jury in favor of a woman claiming injury as a result of the condition referred to.

In the later case of Miller v. Gimbel Bros., 262 N.Y. 107,186 N.E. 410, the court of appeals of New York held that a lady who slipped and fell as she was about to enter defendant's store was, as matter of law, not entitled to recover for the injuries which she suffered. It appears that a short entrance way led from the street to a revolving door. The floor of Tennessee marble sloped downward. On the day of the accident, it had been raining, and the floor was wet, some mud having accumulated in the corner of the revolving door. In the course of its opinion, the court said:

"The cause of plaintiff's fall is not shown by any direct evidence. It does not appear that the plaintiff slipped upon the mud at the door or that the movement of the door was impeded. We may assume that rainwater may make the smooth sloping floor somewhat more slippery than if the floor were dry. None the less it does not appear that the floor even when wet was dangerous. The owner of a store must take reasonable care that his customers shall not be exposed to danger of injury through conditions in the store or at the entrance which he invites the public to use. He cannot prevent some water and mud being brought into an entranceway on a rainy day and he is not responsible for injuries caused thereby unless it is shown that the construction of the store is inherently dangerous or that he failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions. That has not been shown here."

The judgment in favor of the plaintiff entered on the verdict of a jury, which had been affirmed by the appellate division, was reversed and the action dismissed.

The appellate division of the supreme court of New York, in the case of Abbott v. Richmond County Country Club,211 A.D. 231, 207 N.Y. Supp. 183, reversed a judgment entered upon the verdict of a jury in favor of one who slipped on a concrete floor bearing a smooth finish, which had been stained and then covered with a fine coating of linseed oil to prevent dust. It appeared from the testimony that other persons had slipped and fallen upon the floor prior to the accident to plaintiff, and that the fact that persons had slipped on the floor had been reported to the superintendent. The court unanimously held that

"Such a condition as is presented in the case at bar is not sufficient to charge a reasonably prudent person with the duty of foreseeing that one in the exercise of ordinary care using the floor would be exposed to danger,"

and reversed the judgment of the trial court, holding as matter of law that the plaintiff could not recover. The decision of the appellate court was affirmed by the court of appeals of New York,148 N.E. 762.

The supreme court of Ohio, in the case of Kresge Co. v.Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132, held that a judgment in favor of a lady who suffered damages as a result of a fall, which judgment had been affirmed by the court of appeals, should, as matter of law, be reversed and the action dismissed. It appeared that the plaintiff entered the defendant's store upon a rainy day, the floor immediately inside of the door being wet and somewhat slippery, due to the fact that customers had carried in water from the sidewalk, some rain also having blown in as the door was, from time to time, opened. The court states that the evidence showed that the floor was wet enough to be slippery. The court held that no negligence was proven, and that the owner of the premises was entitled to judgment in his favor.

The United States circuit court of appeals for the fifth circuit, in the case of Batson v. Western Union Telegraph Co.,75 F.2d 154, affirmed a judgment of the district court based upon an instructed verdict in defendant's favor entered at the close of plaintiff's testimony. Plaintiff testified that she entered the defendant's telegraph office just as a janitor had "finished oiling or mopping the floors." Plaintiff testified that she used due care, because she noticed that in places the floor was damp, but notwithstanding this, as she entered, her foot slipped and she fell and was injured. The court affirmed the ruling of the district court, saying, in the course of its opinion:

"Here there was no foreign substance wrongfully on the floor, lying unobserved there to make a secret hazard known to the proprietor, unknown to the customer, as there was in the case where meat had been dropped and left to lie, or where ice had been allowed to accumulate in an entrance way to form a slippery surface. Neither is this a case of a slippery condition caused by washing and oiling floors in a manner and under circumstances causing danger of which the proprietor knew and the customer did not."

The opinions of the supreme court of Missouri, in the case ofVogt v. Wurmb, 318 Mo. 471, 300 S.W. 278, and the appellate court of Illinois, in the case of Jones v. Kroger Grocery Baking Co., 273 Ill. App. 183, are also in point in this connection.

We are of the opinion that no primary negligence was, in this case, proven against appellant. Assuming that appellant knew that water was frequently splashed upon the cement floors of the market, and that these floors were often damp or even wet, it cannot be held that a wet cement floor constitutes such a dangerous condition as to hold the owner maintaining the same responsible as for negligence to one who slips thereon. A wet cement surface does not create a condition dangerous to pedestrians. It is a most common condition, and one readily noticed by the most casual glance.

We conclude that the trial court erred in overruling appellant's motion for judgment in its favor notwithstanding the verdict, and the judgment appealed from is accordingly reversed, with instructions to dismiss the action.

MILLARD, C.J., TOLMAN, GERAGHTY, and MAIN, JJ., concur.