On appeal from the Supreme Court.
For the appellant, American Stores Company, Coult, Satz, Morse & Coult (Joseph Coult, of counsel).
For the respondent, Lum, Fairlie & Wachenfeld (Charles S. Barrett, Jr., of counsel).
The opinion of the court was delivered by
THOMPSON, J. The plaintiff was a customer in a store operated by the defendant American Stores Company. The building was constructed and owned by Thirty-Second Street Corp., who leased to American Stores Company. Plaintiff sued both corporations for personal injuries and money loss allegedly sustained by her as a result of negligent construction and negligent maintenance of the store premises by one or both of the defendants. Thirty-Second Street Corp. was granted a nonsuit. The defendant American Stores Company
offered no testimony at the trial, and the case went to the jury at the conclusion of plaintiff's evidence and following denial of defendant's motions for nonsuit and for direction of a verdict in its favor. The jury awarded damages of $1,250 to the plaintiff, and the defendant appeals from the judgment thereon.
The errors alleged by appellant are in the trial judge's refusals to grant its motions for a nonsuit and direction of a verdict. Both motions were urged on two grounds: (1) that there was no evidence of negligence on the part of the defendant, and (2) that the plaintiff, Anna H. Shipp, was as a matter of law, under the evidence in the case, guilty of contributory negligence and assumed the risk.
We are of the opinion that in the state of the evidence in this case the trial court properly denied the motions for nonsuit and direction of a verdict, and that the questions of negligence and contributory negligence were rightly submitted to the jury for its consideration and decision.
The plaintiff sustained her injuries by falling upon a slippery floor in the defendant's store. Her testimony was that the surface was in an unusually slippery condition, which had existed for some time and previously had been called to the attention of the manager by at least one other visitor to the store, one Dorothy Davis, who so testified at the trial. The manager was present in the court room and was identified by the witness. (S.C., p. 46.) He did not testify in denial of her statement. Another witness, Albert Clothier, Jr., also testified to having visited the store and noticing the "unusually slippery" condition of the floor to the extent that he "watched my step." Mrs. Shipp, upon entering the store with her daughter, it being their first visit there, turned to the left to go to the dairy counter. She says the floor was hardwood, highly polished, "unusually slippery, more so than any I have ever seen before." Asked as to the degree of polish, she replied, "It was very highly polished. I kept looking at it and watching it. I went very slowly. * * * I thought it was more highly polished than any other floor." Reaching the dairy counter, having traversed the floor for about fifteen feet from the entrance to that point, she asked
for butter and was told that article was "self service," and she had to go the length of the counter, around a display of canned goods, to the refrigerator, "perhaps 15 to 20 feet, not any more than that," from the dairy counter. Proceeding thence from where she then stood, "I was still watching the floor. Of course, I looked at it and the polish and I slipped as I went around the display of canned goods, my foot just went out from under me and I fell." Under cross-examination by counsel for both defendants then in the case, with respect to her proceeding across the floor notwithstanding the noticeably highly polished floor, she answered repeatedly that she had used care in doing so, that there was no thought of falling, "it was simply the thought that on a floor or any surface of that kind one walks with care." These answers were in response to questions by defendants' counsel manifestly designed to elicit facts with reference to her own conduct as it might affect her responsibility for her own safety under the circumstances, and she was entitled to have this evidence regarded by the court as true for the purpose of defendant's motion for a nonsuit, and she was entitled later to have such evidence weighed by the jury, along with other pertinent testimony, in the consideration of the question of contributory negligence.
Dorothy Davis testified that she was a customer of the store and was in it at the time of Mrs. Shipp's accident, though she had not seen her fall; that the condition of the floor in the store at that time was the same as she had seen it on her previous visit to the store about a week before, "or some days before that;" that on the occasion of her previous visits the floor was very slippery and highly polished; that she had told the manager the floor was very slippery and he should do something about it, otherwise there would likely be a lawsuit. "Having slipped ...