Summary
In Dooley v. Economy Store, 109 Vt. 138, 194 A. 375, 377, the suit was predicated upon the alleged negligence of the defendant in failing to keep stairs and approaches in a reasonable state of repair, and in failing to maintain a railing either in the center of the stairway, or at either end.
Summary of this case from Opelika Montgomery Fair Co. v. WrightOpinion
Opinion filed October 5, 1937.
Motion for Directed Verdict — Negligence — Consideration of Evidence Based on Surmise — Of Unreasonable Evidence — Evidence Presenting Issue Not Conclusive on Right to Directed Verdict — Liability to Invitee — Lack of Railing on Stairs as Negligence — Possibility Insufficient as Basis for Finding of Negligence — Failure to Show Defendant's Knowledge of Alleged Defects — Necessity of Knowledge Thereof — Failure to Maintain Railing in Anticipation of Possible Defect in Stairs — Defendant Entitled to Directed Verdict.
1. In considering exception to denial of defendant's motion for directed verdict, evidence must be viewed in light most favorable to plaintiff.
2. In action to recover for personal injuries received by plaintiff from fall in defendant's store, where only evidence on question of defendant's negligence was that of plaintiff, such evidence could not be ignored in considering defendant's right to directed verdict, though it gave impression it was based on surmise and conjecture.
3. Unreasonable, inconsistent or contradictory testimony given by a witness, unless impossible, must be considered in connection with motion for directed verdict.
4. In action to recover for personal injuries received by plaintiff from fall in defendant's store, though plaintiff's evidence that she slipped on stair, caught her heel on metallic binder thereon and fell, because there was no railing, presented issue of fact as to manner in which fall occurred, denial of defendant's motion for directed verdict was not necessarily proper.
5. Owner of premises is not liable to one who goes thereon as invitee for injuries resulting from danger which is obvious or should have been observed in exercise of ordinary care.
6. In action to recover for personal injuries received by plaintiff from fall in defendant's store, where fall occurred as plaintiff started down flight of two stairs between departments, held that lack of railing on stairs did not, standing alone, constitute actionable negligence since it was apparent to all who used stairs and there was no evidence that railing would have prevented fall or lessened its force.
7. In such circumstances, mere possibility or conjecture that railing might have prevented plaintiff's fall or lessened its force held insufficient to justify finding that it would have done so.
8. In such action, defendant held not liable for defects in stairs complained of in absence of evidence that it knew of them or that they had existed a sufficient length of time to charge it with knowledge.
9. To impose liability for injury to invitee by reason of dangerous condition of premises, condition must have been known to owner or have existed for such time that it was his duty to know it.
10. In action to recover for personal injuries received by plaintiff from fall in defendant's store, lack of railing and alleged defect in stairs, taken together, held not to make jury question on defendant's negligence, since defendant was not required to maintain railing in anticipation of some possible defect in stairs for which it was not liable.
11. In such action, where lack of railing and alleged defects in stairs, standing alone or taken together, were not sufficient to constitute negligence, defendant was entitled to directed verdict.
ACTION OF TORT for negligence to recover for injuries sustained by plaintiff in fall while shopping in defendant's store. Plea, the general issue. Trial by jury at the September Term, 1936, Rutland County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Judgment reversed and judgment for the defendant.
Lawrence O'Brien for the defendant.
Novak Bloomer for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON and SHERBURNE, JJ., and SHIELDS, Supr. J.
Plaintiff seeks to recover for injuries that she received from a fall in defendant's store. She had a verdict and judgment below and the case is here on defendant's exceptions.
Defendant's store is divided into various departments among which are the suit and the millinery departments. These are located on the second floor and are connected by an archway eight to ten feet wide. The floor of the suit department is two to three feet higher than the floor of the millinery department and there are two stairs leading from the former to the latter that extend across the entire archway. The tread of the stairs was covered with rubber or linoleum and had a copper or brass binder an inch or an inch and one-half wide at the outer edge, held in place by small tacks or nails. There was no railing in the center or at either end of the stairs.
The suit is predicated upon the alleged negligence of defendant in failing to keep these stairs and the approaches thereto smooth and in a proper and reasonable state of repair, in failing to keep the carpet on the stairs and approaches thereto smoothly and safely laid and fastened, and in failing to maintain a guard-rail either in the center of the stairway or at each side thereof.
At the close of all the evidence defendant moved for a directed verdict on the grounds that the evidence did not tend to show that it was negligent in any of the respects alleged; that its negligence as alleged was a proximate cause of the accident; that the slipping testified to by plaintiff was due to its negligence; that a negligent condition at the point of the accident was a proximate cause thereof; that plaintiff was free from contributory negligence, or nonassumption by plaintiff of such risk as arose from the conditions shown. The motion was overruled subject to defendant's exception.
In considering the question raised by this exception the evidence must be viewed in the light most favorable to the plaintiff. It showed the relative location of the suit and millinery departments and the construction of the passage-way between them as above stated, and that plaintiff fell on the stairs leading from the former to the latter department.
The sole question about which there was a conflict in the evidence was whether plaintiff's fall was due to her carelessness or to defendant's negligence as alleged in the declaration. The only evidence tending to support her claim about this was her own testimony. She testified, in effect, that she started down the stairs between the two departments, slipped on the top stair, and, because the metallic binder thereon was rough, caught her heel in it, and there being no railing to get hold of to prevent her falling, "away I went." Although her testimony respecting this gives the impression that it was based on surmise and conjecture rather than on actual knowledge, it cannot be ignored. It stands somewhat like unreasonable, inconsistent or contradictory testimony given by a witness which, unless impossible, must be considered. Robey v. Boston Maine Railroad, 91 Vt. 386, 100 A. 925; Shields v. Vt. Mut. Fire Ins. Co., 102 Vt. 224, 237, 147 A. 352; Bates v. Rutland Railroad Co., 105 Vt. 394, 165 A. 923; Perkins v. Vermont Hydro-Electric Corp., 106 Vt. 367, 399, 177 A. 631; Potter v. Crawford, 106 Vt. 517, 175 A. 229; Steele v. Lackey, 107 Vt. 192, 198, 177 A. 309. The evidence bearing on this question presented an issue of fact, but it by no means follows that defendant's motion was properly denied.
That the lack of a railing, standing alone, did not constitute actionable negligence is clear, since the owner of premises is not liable to one who goes thereon as invitee for injuries resulting from a danger that was obvious to the latter or should have been observed by him in the exercise of ordinary care. Cole v. L.D. Willcutt Sons Co., 218 Mass. 71, 105 N.E. 461; Shaw v. Ogden, 214 Mass. 475, 102 N.E. 61; Shanley v. American Olive Co., 185 Cal. 552, 197 P. 793; Weber v. City Water Co., etc., 206 Ill. App.? 417; Calvert v. Springfield Light Power Co., 231 Ill. 290, 83 N.E. 184, 14 L.R.A. (N.S.) 782, 12 Ann. Cas. 423; Clark v. City of Huntington, 74 Ind. App. 437, 127 N.E. 301, 128 N.E. 453; Carleton v. Franconia I. S. Co., 99 Mass. 216; Lindsley v. Stern, 203 App. Div. 615, 197 N.Y.S. 106; Dube v. Cooperage Lumber Co., 209 Mich. 661, 177 N.W. 148; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9. Such was the situation here. The absence of a railing was apparent to all who had occasion to use the stairs. Moreover, there was no evidence fairly and reasonably tending to show that a railing would have prevented plaintiff's fall or lessened the force of it. The mere possibility or conjecture that it might have is insufficient to justify a finding that it would. Gaudette v. Taylor, 108 Vt. 109, 183 A. 335; Johnson v. Burke, 108 Vt. 164, 183 A. 495; Wellman, Admr. v. Wales, 98 Vt. 437, 129 A. 317; Id., 97 Vt. 245, 255, 122 A. 659; Gilman v. Central Vt. Ry. Co., 93 Vt. 340, 107 A. 122, 16 A.L.R. 1102.
It is equally clear that defendant is not liable for injuries resulting from the other defects complained of since there was no evidence tending to show that it knew of them or that they had existed a sufficient length of time to charge it with knowledge. In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises the condition must have been known to the owner or have existed for such time that it was his duty to know it. Kaufman Department Stores v. Cranston (C.C.A.), 258 Fed. 917; Bornstein v. R.H. White Co., 259 Mass. 34, 155 N.E. 661, and cases cited; Toland v. Paine Furniture Store, 175 Mass. 476, 56 N.E. 608; Carleton v. Franconia I. S. Co., 99 Mass. 216; Patten v. Bartlett, 111 Me. 409, 89 A. 375, 49 L.R.A. (N.S.) 1120; Schnatterer v. Bamberger, 81 N.J. Law, 558, 79 A. 324, 34 L.R.A. (N.S.) 1077, Ann. Cas. 1912D, 139; Leach v. S.S. Kresge Co. (R.I.), 147 A. 759; Bennett v. Railroad, 102 U.S. 577, 26 L. ed. 235; Lindsley v. Stern, 203 App. Div. 615, 197 N.Y.S. 106; Calvert v. Springfield Light Power Co., 231 Ill. 290, 83 N.E. 184, 14 L.R.A. (N.S.) 782, 12 Ann. Cas. 423. See, also, Hunnewell v. Haskell, 174 Mass. 557, 55 N.E. 320.
In the circumstances shown neither the lack of a railing nor the defect in the stairs, standing alone, constituted actionable negligence; nor did the acts complained of, taken together, show such negligence, since it logically follows that if defendant was not liable for the defects in the stairs it was not liable for failing to provide means for possibly avoiding the results of such defects. In other words, it was not required to maintain a railing in anticipation of some possible defect in the stairs for which it was not liable. Defendant's motion should have been granted.
Judgment reversed and judgment for the defendant.