Touhy v. Owl Drug Co.

WILLIS, J.,

pro tem.

Respondent recovered judgment in the court below for injuries alleged to have been sustained on August 31, 1930, by reason of her falling to the floor in one of appellant’s drug stores as the result of alleged negligent construction and maintenance of a platform and stools thereon along a soda fountain counter therein. The evidence is brief and without substantial conflict. Appellant contends it does not support the finding of negligence and that therefore the judgment based thereon is contrary to law.

Respondent, aged sixty-six years, entered appellant’s drug store as an invitee. She made a purchase and then sat on a stool at the soda fountain and drank a soda. Arising, she stepped and fell to the floor, injuring her hip. The stool on which she was seated was 22 to 24 inches high, set on a platform 7 inches above the floor level and which extended 24 inches from the base of the soda counter. The platform and floor were both covered with the same design, size and color of tiles, of an alternating color checkered type. Respondent testified that as she turned around to get off the stool she “thought she was stepping on the floor, and my foot went, and that is all I know until I fell”. When asked, “Did you notice the floor or the platform as you stepped off 1” she replied, “No sir, I just went to get off, arid I thought I was getting on the floor. I thought I was just going to step on the floor, and I didn’t know anything more. ... I didn’t notice it.” On cross-examination she was asked, “Well, did you step upon the step when you got onto the stoolf” and her answer

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was, “I don’t know how I got up there. I got up some way to the counter and got a soda, and just as I was getting off I tumbled off.”

Respondent contends that the negligence of appellant consisted in the maintenance of the platform above the floor level with the same kind of tiles on both, arguing that such arrangement produced an appearance of a common level of the platform and floor and thus produced the effect of confusing and deceiving the ordinary person into the belief that they were on the same level. The court below found that respondent was caused to fall by reason of the negligent and careless manner in which said stool was constructed and maintained. This finding can be supported on no basis other than that of inference of deception and camouflaging effect due to the use of the checkerboard tiling of the same type on both platform and floor.