
    Toth Provision Co. v. Bagnull.
    (Decided July 23, 1935.)
    
      Messrs. Huxley & Smith and Mr. G. M. Beard, for plaintiff in error.
    
      Mr. Morris Mendelsshon, for defendant in error.
   Guernsey, J.

This is an error proceeding from the Court of Common Pleas of Mahoning county. In that court the plaintiff in error, Toth Provision Company, was defendant, and the defendant in error, Ethel Bag-null, was plaintiff, and the parties will be hereinafter referred to in the relation they appeared in the trial court.

The case was tried to a jury in the Common Pleas Court and a verdict was returned by the jury on November 8, 1934, in favor of plaintiff in the sum of $4000. Motion for new trial was duly filed, and on November 28,1934, the trial court ordered a remittitur in the sum of $1000, which was accepted by plaintiff, and judgment was entered for $3000. Motion for new trial was overruled and this proceeding in error is brought by the defendant to reverse the judgment of the trial court.

The undisputed evidence in this case shows that the defendant operated a meat and vegetable market in the down town section of the city of Youngstown; that the Todd DeLuxe Grocery Company, operated by Mr. John Todd, was a separate company that sublet a portion of the storeroom from defendant for the purpose of conducting a grocery business; that the section of the storeroom so sublet by defendant consisted of a counter about forty feet long on the west side of the storeroom, and shelving in the back of and paralleling the counter for its entire length and extending south of the south end of the counter for a distance of twenty feet, the south end of the shelving being in back of part of the vegetable counter operated by the defendant, with about a three foot aisle between the counter and the shelving, and that by agreement of the defendant and the grocery company this portion of the aisle was used by each of .them and their respective employees in carrying on the respective businesses conducted by them.

The plaintiff was an employee of the Todd DeLuxe Grocery Company, and in her petition claimed to have been injured while climbing down on the south twenty feet of this shelving occupied and used by the grocery company, after getting a can of pineapple for a customer; that in climbing down from the shelving she stepped on a fifty-pound bag of onions belonging to the defendant, which was located in the aisle between said shelving and the vegetable counter owned and operated by defendant, causing her to fall, this bag of onions having been placed in the aisle and between the shelving and the counter for the purpose of replenishing the supply of onions on the vegetable counter operated by the defendant, as the supply was sold.

The accident occurred on February 3,1933, at about five-fifteen, p. m.

The plaintiff admits in her own testimony that on the morning of the day of the accident she saw this bag of onions that she later fell over, in the aisle at the place where the accident occurred.

According to her own testimony she was in bed for two weeks after the accident, and in her home for six or seven weeks, and that after the second week she went out. And the evidence further shows that she came down to defendant’s store and was walking around in less than two weeks after the accident. Her physician testified that he had not seen her since about three months after the accident and that he assumed at that time that she was cured. This is the only medical testimony in the case. The material parts of plaintiff’s testimony with reference to the accident, are as follows:

“Q. Who was it you was waiting on? A. Mr. Kolonis.

“Q. What time of day was it when he came into the store? A. About five-fifteen I imagine.

“Q. What did he ask for? A. Can of pineapple.

‘ ‘ Q. And this can of pineapple where was it located with reference to the shelves? A. Well, in order to reach it I had to climb np three shelves.

“Q. Was that on the last shelf? A. No.

“Q. You had to reach for it? A. Yes, I did.

“Q. How many shelves did you have to climb to reach for it? A. Three shelves.

“Q. What did you climb up on? A. I just took hold of the shelves.

“Q. You climbed up on the shelves? A. Yes, sir.

“Q. Was there a stepladder around there? A. No, there was not.

“Q. Now this counter, there is an aisle between the counter and the shelves? A. Yes, sir.

“Q. And is it a wide aisle or a narrow aisle? A. It is narrow.

“Q. About how wide, please? A. I imagine it is about three feet.

“Q. Now, as you climbed up this what did you do? A. I got a can of pineapple.

* ‘ Q. And then what did you begin to do ? A. I began to come down again and I was still looking up and thinking of waiting on my customer when I stepped back on a sack of onions and they started rolling, and I fell.

“Q. What happened to you? A. I fell and sprained my ankle.

“Q. Just where with reference to the counter or the shelves was this bag of onions? A. Well, they were right beside the counter and then the shelves were here like it only left a space of about that much to walk through.

“Q. Indicating about a foot from the shelves? A. Yes, sir.

“Q. So that it was then about the middle of the aisle? A. Yes, sir.

“Q. And at that moment you said you was thinking about waiting on your customer? A. Yes, sir.

“Q. As you were coming down you didn’t see the sack of onions ? A. No.

“Q. Now, when you fell on what side did you fall, do you remember how you fell with your back or side ? A. I fell on my left side and my ankle turned under.

“Q. That sack of onions you are referring to how long was it there on that day? A. It was there in the morning when I swept and I asked Pete to please move it.

“Q. Pete who? A. Pete Kubec.

“Q. Who is he? A. He was managing the produce department at that time.

“Q. For the Toth Provision Company? A. Yes, sir.

“Q. Did he remove it after you told him about it? A. All he gave me was fresh remarks.

“Q. And that sack of onions as you say was there all day Friday? A. Well, I noticed when I was sweeping and I didn’t pay much attention after that.

“Q. Was that the same'sack you noticed while you was sweeping that you fell on later? A. I imagine it was.

“Q. Now you say that this bag of onions that you fell over you had seen there in the morning of this day? A. Yes, sir.

“Q. And you knew it was there all day long, didn’t you? A. Well, I imagine it was.

“Q. And when you climbed up to get this can of pineapple you knew that bag of onions was there, didn’t you? A. Well, my mind was on my work and I didn’t stop to think at that time, we were busy at that time, I was waiting on this man and I just had my mind on my work.

“Q. When you climbed up there you didn’t think about that bag of onions? A. I didn’t think about, I was just thinking about that can of pineapple.

“Q. Were there any long arms there to reach up and get a can of pineapple off the shelves? A. No one could have reached it without that stick and I was afraid it would slip from that and I would break my glasses.

“Q. Had you ever used those? A. Yes, I did when it was not such a heavy can.

“Q. There were three of those long arms there, were there not? A. There was only one that you could get hold of the ean you know and carry it right down.

“Q. Was that one there that day? A. That one was there.

“Q. And this one you say a long arm Miss Bag-null it is a stick like you use in grocery stores to reach up and grab a can with a handle on it and bring the can down? A. Yes, sir.”

There are a number of assignments of error in the petition in error, but in the view we take of this case it is necessary to discuss only the sixth assignment of error, which is that the court erred in overruling defendant’s motion for a directed verdict at the close of all the evidence, as the consideration of this assignment of error disposes of the whole case.

Upon this assignment of error it is contended by the defendant: First, that the defendant owed no duty to the plaintiff upon which liability for negligence could be founded; Second, that there is no evidence tending to prove negligence on the part of the defendant; Third, that the evidence shows that the plaintiff was contributorily negligent as a matter of law.

These contentions will be discussed in the order mentioned.

1. It is held in the case of Hunter v. Sheriff Street Market & Storage Co., 23 Ohio App., 363, 155 N. E., 404, that “where aisle in building operated by defendant, in which were located stands leased to dealers, was under defendant’s control, it was duty of defendant to exercise ordinary care to keep aisle in reasonably safe condition for use of tenants and their customers.”

The decision in this case is based on the decision of the Supreme Court in the case of Davies, a Minor, v. Kelley, 112 Ohio St., 122, 146 N. E., 888, a case involving a somewhat similar state of facts, wherein the same holding is made as to the duty of the lessor, under similar circumstances, and it is further held that such duty extends not only to the tenant himself but also to members of his family, employees, guests and invitees.

As between the defendant and the Todd DeLuxe Grocery Company, the defendant was the lessor and the grocery company was the tenant of the portion of the premises occupied by the grocery company, and under the evidence in that case the lessor retained at •least a partial control over the aisle in which the accident occurred, and it was therefore the duty of the provision company to the plaintiff as an employee of the grocery company, in the use of the aisle for the conduct of defendant business, to exercise ordinary care to keep the aisle in reasonably safe condition for use by her in the performance of her duties as such employee.

2. The question of negligence is to be determined by the consideration whether or not a party has guarded against those things which he might reasonably have had cause to anticipate. B. & O. Rd. Co. v. Wheeling, P. & C. Transportation Co., 32 Ohio St., 116.

If under the agreement between the defendant and the grocery company the use of the aisle had been restricted to passageway purposes it would clearly appear as a matter of law that the defendant did not reasonably have any cause to anticipate and had no duty to guard against injury to persons incident to the use of such aisle for climbing up and down shelving adjacent thereto, bnt in the instant case the use of the aisle was not so restricted. It extended to the use of the aisle space by the grocery company and its employees as a base for the handling of goods and the placing of them on and removing them from the shelving, and under this state of facts it was a question for the jury to determine as to whether the defendant might reasonably have had cause to anticipate and guard against injuries sustained by the plaintiff in her use of the aisle and shelving in the manner in whieh she used them for the removal of goods from shelves.

3. This leaves the question as to whether the plaintiff was contributorily negligent as a matter of law, barring her from recovery.

The evidence shows that on the morning of the day of the accident the plaintiff saw the bag of onions in the aisle where the accident later occurred. Her reason for not taking the presence of the bag of onions into consideration at the time she climbed the shelves and stepped down on the bag, was that her mind was on her work and she did not stop to think at the time; that she was busy at the time and was waiting on a customer and had her mind on her work, and that she began to come down again and was still looking up and thinking of waiting on her customer when she stepped back on the sack of.onions and they started rolling and she fell.

“To forget is not negligence unless it amounts to a failure to exercise ordinary care for one’s safety.’’ 45 Corpus Juris, 950.

As such an interval of time elapsed between the time she observed the sack of onions in the aisle in the morning and the time of the accident, and as the sack of onions was in the nature of a temporary obstruction of the aisle, and not a defect in the aisle, the question as to whether an ordinarily prudent person would not at the time the accident occurred have forgotten its presence was a question for determination by the jury.

Irrespective of the question as to whether the plaintiff was negligent in forgetting the presence of the sack of onions in the aisle, there is another question, and that question is ás to whether plaintiff was contributorily negligent as a matter of law in beginning to climb down the shelves while still looking up and thinking of waiting on her customer, and in stepping back on the sack of onions with such weight and force as to cause her to fall when the sack started rolling.

There is an old axiom applicable to the plaintiff’s conduct in this respect, the axiom being “Look before you leap,” and this rule of conduct is so well settled that a violation of it without a reasonable excuse is negligence. The plaintiff at the time the accident occurred was at some elevation above the floor of the aisle and while looking upward she stepped back with such- force and weight onto the sack of onions as to throw her off her balance when the sack rolled. From this it would appear that she either voluntarily stepped backward and downward on the sack, or voluntarily took an unrestrained step backward and downward, without regard to her elevation from the floor and without regard to where she was stepping.

“A person is required to make reasonable use of his faculties of sight, hearing, and intelligence to discover dangers and conditions of danger to which he is or might become exposed.” 45 Corpus Juris, 947.

“Ordinary prudence requires every person who is in the full enjoyment of his faculties of hearing and seeing, before attempting a dangerous act or operation, to exercise them for the purpose of discovering and avoiding peril. The omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.” _ 29 Ohio Jurisprudence, 554, 555.

The plaintiff at the time she was injured was engaged in a dangerous act and her omission to exercise her faculties of seeing for the purpose of discovering and avoiding peril was negligence, and there is a direct causal connection between such omission and the injuries suffered by the plaintiff. Plaintiff was therefore contributorily negligent as a matter of law, which barred her from recovery. The court therefore erred in overruling the motion of the defendant for a directed verdict at the close of all the evidence.

The judgment will therefore be reversed and final judgment entered in favor of plaintiff in error.

Judgment reversed.

Klinger, J., concurs.

Judges Klinger and Guernsey, of the Third Appellate District, sitting by designation in the Seventh Appellate District.  