Hamilton v. Union Public Market

SHINN, J.,

pro tem.

Plaintiff, while in a public market to make a purchase, slipped and fell on an oily floor in an aisle, and in this action for damages recovered judgment against the owners of the market and their employee, whose duty it was to keep certain portions of the floors of the building clean.

The market building, owned by defendant Gore Brothers, Inc., was occupied by tenants and subtenants whose small places of business were separated by aisles. One of the subtenants, a Mr. Wertzel, operated a delicatessen store. He accidentally knocked nine bottles containing * (separately) mustard, horseradish, barbecue sauce, and tartar sauce to the floor, where they broke in an aisle in front of the counter. Defendant George Keller, janitor for Gore Brothers, Inc., heard the crash and came with a broom and dustpan with which he removed the glass and such of the liquid mixture as he could with the equipment he had. He then left and later returned with a pail of water and a mop. While he was away plaintiff slipped on the oily floor and fell.

Defendants upon this appeal urge several grounds for reversal. They contend that Gore Brothers, Inc., owed no duty to the patrons of the stores with reference to the condition of the aisles. It was stipulated that the owners in leasing the stores to the tenants agreed to furnish janitor

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service for the purpose of keeping clean the aisles between the leased portions of the building. Defendants say that the stipulation applied only to leases of “various” tenants and not to all of them, and that it was not shown that the aisle where the accident occurred was one which was under the care of the owners. It is true that the court, in stating the terms of the stipulation after conference with counsel, used the word “various” with reference to the leases, but it is plain upon the entire record that the case was tried upon the theory that the stipulation applied to all of the leases. We more readily reach this conclusion because the defendants did not question the application of the word “various” to the several leases, nor did they question the court’s understanding of the term. The jury was justified in finding that the aisle where the accident occurred was one which was used generally b;r the tenants and patrons of the stores and that the duty of exercising ordinary care to keep the same in a safe condition was upon the owners and not upon the tenants ot subtenants.