Shepard v. Kienow's Food Stores

DUNCAN, J.

(Pro Tempore)

1. Action for damages for personal injuries incurred August 2,1956, by plaintiff, Mathilda Shepard, allegedly caused by the negligence of defendant, Kienow’s Food Stores, when plaintiff fell on the floor of the retail store operated by defendant. Pursuant to verdict of the jury plaintiff had judgment for $1,700 general damages and $1,970.90 special damages, which judgment was entered April 24, 1958.

On May 23, 1958, pursuant to defendant’s motion for judgment n.o.v. on the ground that defendant had made a motion for a directed verdict which should have been granted but was refused, the judgment for plaintiff was set aside and judgment entered for defendant against plaintiff. In conformance with the statute, the court also ruled on defendant’s motion for a new trial which was joined with the motion for judgment n.o.v.

At the time of her fall plaintiff was a customer-invitee on the premises of defendant. Adjacent to the store defendant maintained a parking lot for nse of its customers, and plaintiff had parked her car therein immediately before entering the store. In substance the charge of negligence is that defendant permitted motor vehicles to park in close proximity to the store entrance; that grease and oil dripped from the vehicles and accumulated near the entrance and that persons entering the store picked up grease and oil on their shoes and deposited it on the floor at the entrance, causing the floor to become covered with grease and oil; that defendant failed to remove the grease and oil from the parking lot and from the floor of the store; and that defendant knew, or in the exercise of reasonable diligence should have known, of the presence of the grease and oil on the floor and that it failed to warn its customers thereof.

Defendant charged plaintiff with contributory negligence in failing to watch where or how she was walking and failure to keep a lookout.

Under the rule stated in Cowden v. Earley et al., 214 Or 384, 327 P2d 1109, the parties are in accord that to prevail plaintiff must have proved:

1. That the substance causing her to slip and fall was placed on the floor by defendant, or

2. That defendant knew that the substance was there and failed to use reasonable diligence to remove it, or

3. That the substance had been there for such length of time that the occupants should have, by the exercise of reasonable diligence, discovered and removed it.

The testimony of plaintiff reveals that she drove her automobile to defendant’s parking lot about 2:30 or 3:00 in the afternoon of the accident. Bain was then falling. .In the parking area about 5 feet from and right in front of the store door was a “kind of a hole” or a “pool” about 5 feet by 5 feet in size, containing grease and oil which had been there for several months before the accident. This hole or pool was obvious to plaintiff as she approached, so to avoid it she parked her car several spaces away from the store entrance. Concerning her entrance into the store, she testified on direct examination as follows:

“Q You did not observe the floor was wet before you fell?

“A I just went in like any other time.

“Q Where were you looking when you walked in?

“A I wasn’t looking at any particular place. You don’t have to look. You are supposed to be safe.

“Q You didn’t look at the floor as you walked in?

“A No.

“Q Where were you looking before you fell?

“A I was just walking straight ahead.”

About five feet from the first check stand, which was not far from the entrance, plaintiff slipped or skidded and fell to the floor. A customer at the first cheek stand helped her up. After the fall plaintiff saw an area about 3 or 4 feet in diameter containing oil, transmission grease and water, through which area appeared skid marks from her shoes. This accumulation looked to her like that in the parking lot. After falling, she noticed oil on her coat. Plaintiff had a locker in the store and for several years had entered the store 2 or 3 times a week on the average, but sometimes with longer intervals between visits. She had not previously seen grease or oil on the floor. The foregoing substantially stated plaintiff’s case covering her fall and events leading np to it. There were no eye witnesses.

Plaintiff reported to Mr. Hall, the store manager, who later sent her to the hospital. He looked at the spot where she fell and testified that it was water and that he conld see heel marks about ten inches long on the spot, but that he saw no grease or oil and that he had not previously seen an accumulation of grease or oil on the floor. Two clerks of defendant testified that they had seen no accumulation of grease and oil on the floor at any time.

The evidence received did not establish negligence on the part of defendant. At the same time plaintiff’s failure to have looked at the floor when entering and walking ahead amounted to something less than the degree of care required of a person of ordinary prudence under the existing situation.

The entry by the trial court of the judgment n.o.v. in favor of defendant was proper.

Affirmed.