Kerr v. Bullock's Inc.

DORAN, J. This is an action for damages for personal injuries. The court granted defendant’s motion for a nonsuit and from the judgment that followed, plaintiff appeals.

The action was tried before a jury; at the close of plaintiff’s case following the motion for a nonsuit and in connection therewith, the trial court commented as follows, “Well, ladies and gentlemen of the jury, I have saved you some work, that is, I ought to grant a nonsuit in this case after listening to argument. I felt convinced—I may be wrong, but I think I am right,—that there was contributory negligence and that the plaintiff walked into the spot knowing it was there—seeing it, into a place of danger; secondly, that there was no showing that the defendant was negligent.

[278]“So you won’t have to decide the ease; I will have to grant a nonsuit, and I will have to discharge the jury.”

The facts are not disputed; the injuries resulted from an accident, appellant’s description of which is as follows,

“On the 30th day of December, 1943, appellant arrived at respondent’s store at about 10:15 o’clock a. m., and entered the Hill Street building. It had been raining since she had left her home some 45 to 50 minutes previously and continued raining until she arrived at the store. She first visited the men’s department with her son, remained there about a half hour or more while he purchased a suit and then left him after making arrangements to meet her son later on the ground floor where the cosmetics were or at the Hill Street entrance. She went to the fourth floor, then examined merchandise on the third floor and then came down to the main floor, passing through a covered ramp to the Broadway building. She proceeded in an easterly direction along a main aisle until it intersected with another aisle running in a northerly and southerly direction and leading to the Seventh Street entrance, and arrived there at about 11:30 o ’clock a. m. She turned to her right down the intersecting aisle to the cosmetic counter where she made a purchase. Upon completing her purchase she was proceeding southerly along the Seventh Street entrance aisle toward the bag counter and looking at merchandise on display when she slipped in water and mud that people had brought in on their shoes and which defendant had allowed to gather and remain upon said aisle so as to make it dangerous and slippery causing her to fall. ’ ’

It is contended by appellant that a prima facie case having been established, it was error to grant a motion for a non-suit.