
    Lowe v. The Hippodrome Inn Co.
    (Decided September 24, 1928.)
    
      Messrs. Cline & Patterson, for plaintiff in error.
    
      Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, for defendant in error. '
   Sullivan, P. J.

Plaintiff in error, Jolantha Durdon Lowe, on September 19, 1923, in company with her sister, descended’the steps leading from Euclid avenue, in the city of Cleveland, to the cafeteria in the basement, known as the Hippodrome Inn. The set of stairs leading to the entrance of the inn proper was divided by a landing, on which landing the plaintiff in error slipped and received the injuries complained of, and the record shows that the cause of the slipping was a spot, designated in the record as “a soapy, greasy substance, or soapy bubbles.”

When the plaintiff rested, the court sustained a motion to direct, in defendant’s favor; on the ground that the record was silent as to any evidence whatsoever as to any notice of the existence of the substance just described. Error is prosecuted to this court, and we proceed to examine the record to ascertain the legal propriety of the action of the court below.

From a review of the record, we are unanimously of the opinion that the action of the court was in conformity, not only to general principles of law with respect to the doctrine of negligence, but with the overwhelming weight of authorities bearing upon cases of a similar nature; and, while the Supreme Court, except in a general way, has not acted upon the proposition of law specifically raised, yet there is no question in our judgment that the general doctrine of the law, as it relates to negligence cases, and also a long line of authorities outside of Ohio, justify the action of the court below in sustaining. the motion to direct at the conclusion of plaintiff’s evidence.

It is clear from the record that the issue is whether the defendant was guilty of negligence because of the existence of the spot in question. That the defendant might be liable, had it known of the existence of the spot, or if by the exercise of ordinary care and diligence it ought to have known that such spot was there, there can be no question, because knowledge is the basis of the guilt, and in such event omission of duty gives rise to the existence of the spot on the stairway. In the absence of knowledge or omission of duty, how can there be any negligence? Responsibility for the existence of the spot depends on whether defendant knew the spot was there, or ought to have known that it was there, or upon whether sufficient time had elapsed to leave a logical inference and deduction in law of knowledge that created liability.

To be liable in negligence, one must be guilty of something done or left undone, with knowledge, or what is legally tantamount to knowledge, of the situation.

In the case at bar it might be inferred that the spot had been there for a week, and it might be inferred that it had only been there for a second. There are many more inferences that might be indulged with reference to the time it was there, and one inference is no stronger than the other inference, under the state of the record.

The preceding customer down the stairway may have created the spot, or the first patron who had entered the dining room might have so done. Many inferences are deducible. One is as strong as another, one is as logical as another, and they are all of equal probability or improbability. Under this situation, had the case gone to the jury, a verdict could not have been rendered in favor of plaintiff unless the jury selected by its own choice the inference out of the many which suited this conclusion best, but the defendant could not rightly be held upon an inference of this character, because there is no evidence to support that or any of the other innumerable deductions which flow from the circumstances. In other words, without any testimony as to the length of time the spot was on the landing, and without any proof of actual notice, there is nothing in the record of an evidentiary character bearing upon this vital and material point, and to hold the defendant liable under the charge of negligence, without any evidence, direct or indirect, of a negligent act, would be contrary to sound doctrine, general principle, and well-known authorities.

If there were any evidence as to notice, no matter how slight, under the scintilla rule the motion should have been overruled. In other words, if there had even been testimony that the appearance of the spot indicated a certain age, it would follow that there was some evidence bearing upon the question of the length of time that the spot was in existence, but there was no evidence of this character. Verdicts cannot be rendered and judgments sustained without an evidentiary foundation, and it appears to this court that there is no such structure in the reeoi’d.

The alleged negligence does not consist of a defect or a nuisance or anything of such a tangible nature that its duration could be defined or determined. A very fair deduction from the testimony is that the spot might have been an expectoration, something that could have occurred without any intervention or possibility of knowledge on the part of the defendant. In other words, its character, standing alone as it does, has no nexus with the restaurant itself, or its operation, and as reasonable an inference as any other is that its existence was due to an act wholly disconnected from the operation of the restaurant, and due solely to some cause foreign to the operation of the establishment.

Upon such a flimsy thread a verdict could not hang, because it cannot and does not attach itself to the defendant, in the absence of notice.

There is a long line of authorities in cases of this kind to the effect that there is no prima facie case made, in the absence of some evidence of some character bearing upon notice to the party charged.

Mr. Justice Holmes, of the Supreme Court of the United States, whose interpretation of the law is so sound that it rises to the height of genius itself, in speaking upon this principle, in Goddard v. Boston & Maine Rd. Co., 179 Mass., 52, 60 N. E., 486, used the following language:

‘ ‘ The banana skin upon which the plaintiff stepped and which caused him to slip may have been dropped within a minute by one of the persons who was leaving the train. It is unnecessary to go further to decide the case.”

The syllabus of that case reads :

“A passenger, who leaving a train walks along a station platform on which other passengers are walking ahead of. him and falls by stepping on a banana skin and is injured, cannot recover from the railroad company, if it does not appear how long the banana skin had been there or how it got there.”

A case which we think applies in principle to the case at bar is Toland v. Paine Furniture Co., 175 Mass., 476, 56 N. E., 608, from which we quote:

“In order to entitle her to recover * * * she was bound to show that that was its condition at the time of the accident, and that the defendant knew it, or in the exercise of reasonable care ought to have known it, and to have remedied it. * * * Taking into account the character of the alleged defect, we think that this evidence, if it does not fall short of showing that there was a defective condition at the time of the accident, at least falls short of showing that, if there was such a condition, it had been there so long that the defendant knew or ought to have known of it. The evidence is as consistent with the existence of the defect, if there was one, for a few minutes only before the accident, as it is with its existence for a longer time. It does not seem to us, therefore, that the plaintiff has sustained the burden of showing that the defect (if there was one) had existed so long before the accident that the defendant, in the exercise of reasonable care, ought to have known of it and remedied it.”

The following authorities we cite as being of a nature similar to the one above quoted: Schnatterer v. Bamberger, 81 N. J. Law, 558, 79 A., 324, 34 L. R. A. (N. S.), 1077; Lyons v. Boston Elevated Ry. Co., 204 Mass., 227, 90 N. E., 419; Reeves v. Fourteenth St. Store, 110 App. Div., 735, 96 N. Y. S., 448; Garland v. Furst Store, 93 N. J. Law, 127, 107 A., 38, 5 A. L. R., 275; Norton v. Hudner, 213 Mass., 257, 100 N. E., 546, 44 L. R. A. (N. S.), 79; De Velin v. Swanson (R. I.), 72 A., 388; Sennert v. Weisbecker, 82 Misc. Rep., 449, 143 N. Y. S., 1039.

Able counsel for plaintiff in error cite the case that went to our own Supreme Court from the Eighth District, the jurisdiction of this court. The case is known as Kresge v. Fader, 116 Ohio St., 718, 158 N. E., 174. In that case the owners or lessees of stores are held to owe a duty to patrons to exercise ordinary care, but the court also holds that the storekeepers are not insurers against all accidents or injuries while persons are in the store. In this case rainwater had blown into the front of the store on account of the opening to admit customers. The court in its opinion used language which we tbink applies to the case at bar, and, instead of the Kresge case, supra, being in support of the contention of plaintiff in error, we think it is strictly in accord with the attitude of the court in the discussion of this case. On page 722 of 116 Ohio State (158 N. E., 175) we find the following paragraph:

“There was no evidence in the case that the Kresge Company did anything or omitted to do anything which storekeepers of ordinary care and prudence generally, under similar circumstances, omit to do or do for the protection of their patrons.”

On pages 723 and 724 of 116 Ohio St. (158 N. E. 175), is the following paragraph:

“Owners or lessees of stores, office buildings, banks, hotels, theatres, or other buildings where the public is invited to come on business or pleasure, are not insurers against all forms of accidents that may happen to any who come. Everybody knows that the hallways between the outside doors of such buildings and the elevators or business counters inside the building during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be. The same thing is true in the hallways of all post offices. It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to mention them here in detail.”

On pages 724 and 725 of 116 Ohio State (158 N. E., 176), we find the following:

There is no evidence in this case tending to prove, much less proving, that the Kresge Company was guilty of negligence in any particular as charged by Mrs. Fader in her petition. The trial court should have granted the motions of counsel for the Kresge Company for a directed verdict in its favor. Failing in this, the Court of Appeals should have reversed the judgment of the trial court and entered final judgment for the Kresge Company. The judgments of both courts will be reversed and final judgment entered here in favor of the plaintiff in error. ’ ’

We think these quotations support the view of this court in the expression of its opinion herein.

Finally, an impressive fact which distinguishes the Kresge case, supra, from the one at bar, is that in the Kresge case there was some evidence of the length of time that the cause for the complaint existed, while in this case there is no evidence whatsoever bearing upon that point, and it is significant that, with this fact appearing in the Kresge case, supra, the Supreme Court nevertheless reversed both courts, even after the case had gone to a jury in the trial court.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.  