Pollesche v. K-Mart Enterprises of Utah, Inc. ( 1974 )

ELLETT, Justice

(dissenting):

I am unable to agree with the prevailing opinion for the reason that it seems to be based upon the idea that the plaintiff has won a number of cases in the past and, therefore, it’s time for him to lose.

It may be that the plaintiff, appellant herein, is a professional litigant and should not recover in this case. However, we ought to consider his claim on the merits and not look to see how many times he has sued other defendants.

The trial judge dismissed plaintiff’s case as soon as plaintiff had rested. In such a situation we should view the evidence in the light most favorable to the plaintiff’s cause. The trial court could properly take the issue from the jury and rule against the plaintiff only if the evidence is of such a nature that all reasonable minds would have to find as the judge did.¹

In this case if what the appellant testified to is true, I do not see how the judge can take the case from the jury.

The only evidence before the court shows that the appellant was required to pass through a passageway between a well-lighted store and a more dimly-lighted storeroom. The appellant had gone through this passageway a number of times in reading the meter of the defendant and was required to traverse the passageway on the day on which he was hurt. He had observed a sign which said that the passageway was to be kept free of merchandise, and never in the trips he had made before had there been any- merchandise on the floor. The window in the swinging door was of such a height that plaintiff could not see the floor within ten feet of the swinging door. He testified that as he entered the passageway, he stepped on a round object, either a spool, pencil, or a flashlight cell, and fell, receiving injuries.

I think the court erred in deciding that plaintiff was negligent as a matter of law, and I would reverse this case and remand it with directions to let a jury pass on the question of negligence of the defendant and contributory negligence of the plaintiff, if any such there be. The matter of the veracity of the plaintiff is for the consideration of the jury and not the trial court. I would award costs to the appellant.

CROCKETT, J., concurs in the views expressed in the dissenting opinion of EL-LETT, J.

1 . Hindmarsh v. O. P. Skaggs Foodliner, 21 Utah 2d 413, 446 P.2d 410 (1968).