Newman v. Clinton Cafeteria Co.

BRAZIL, J. pro tem.* When this case was called for trial before a jury, the plaintiff’s attorney made an opening statement of what he expected to prove, and just as soon as that was done the defendant moved for a nonsuit upon that statement. The motion was granted and a judgment of nonsuit was thereupon entered in favor of the sole remaining defendant, the Clinton Cafeteria Company. From that judgment the plaintiff appeals.

The appellant told the jury he would present the following evidence.

The plaintiff, a 78-year-old bartender, who lived up on Jones Street for the last 15 years, went to the nearby Clinton Cafeteria at 1095 Market Street for breakfast about 9 o’clock on the morning of April 1, 1954. He walked to the rear portion of the cafeteria, ordered poached eggs, and then, tray in hand, stepped back from the counter to wait for his order. He did this to be out of the way of other customers who, because of the nature of their orders, were not required to wait.

The cafeteria has two aisles for its patrons, only one of which was open for business during the slack morning period. It isn’t easy to get a clear picture of the arrangement of aisles and counters from the opening statement, but it does appear, at least by inference, that the aisle being used was [648]rather narrow, that it was near a service counter of some kind by which customers passed and gave their orders and picked up their trays. To keep people from going down the unused aisle, the respondent had placed a chain of what looked like brass. This chain was about waist high, it was fairly taut, with a little bow in the middle. The chain could have been placed considerably farther up the aisle and be just as effective in preventing people from using the aisle. "Where it was placed “people were likely to bump up against it and put some pressure against it.” The appellant said he would offer the chain in evidence, but nevertheless set out to briefly describe it as a metal chain of one-half to three-fourths inch links, of brass like material, a very soft metal and with very weak links which were in the habit of coming apart. The evidence might also show, the attorney said, that the cafeteria employees deliberately unhinged the chain in the middle when going down the aisle, rather than to step over or crawl under the chain.

When Mr. Newman stepped back to await his order, his back was about a foot from the chain and he was facing the counter. A customer in front of him with tray in hand turned around suddenly, the tray practically in appellant’s face, and by reflex action he stepped' back, maybe one step and in so doing hit the chain. The chain broke and Mr. Newman fell to the floor, breaking his wrist and spraining his back.