Opinion
Argued September 5, 1935
Affirmed October 1, 1935
Appeal from Circuit Court, Multnomah County, ROBERT TUCKER, Judge.
Action by Martha Johnson against Roberts Brothers. Judgment for defendant, and plaintiff appeals.
AFFIRMED.
Clarence E. Yeager, of Portland (John W. Hough, of Portland, on the brief), for appellant.
F.S. Senn, of Portland (Senn Recken, of Portland, on the brief), for respondent.
In Banc.
This is an action for damages for personal injuries tried before the court and a jury. A verdict was rendered in favor of defendant. From the resulting judgment plaintiff appealed.
Plaintiff alleges and asserts, as the gist of her cause of action, as follows: On February 9, 1933, in Roberts Brothers' department store in the Mohawk building, Portland, Oregon, she sustained certain injuries, occasioned by the negligence and carelessness of defendant, Roberts Brothers, in that it maintained a lavatory or restroom in the basement, which was maintained by them for the use and benefit of employees, servants and customers, and was open and subject to the free use of any female persons desiring to use the same; that for some time prior to February 9, one of the toilets was allowed to become and remain out of order and in a faulty and defective condition, and that by reason of that condition the water from one of the toilets overflowed and ran out upon and over a part of the floor of the lavatory, and that the floor thereof had a highly glazed finish and, by reason of the water being allowed to overflow from the toilet to a part of the floor, a portion of the floor was caused to have deposited thereon certain slick, greasy and slimy substances mixed with the water and which rendered the floor dangerous for people to walk upon while entering said restroom for the purpose of using the lavatory; that the condition of the floor and the toilet was at that time known, or by the exercise of reasonable care should have been known, to the defendant Roberts Brothers, and that the condition of the floor rendered said restroom highly dangerous, and that the defendant, Roberts Brothers, was further careless and negligent in that it allowed the restroom to remain open for the use of the public while in said condition, and failed to place any warning upon the door or about the premises or other place to warn the public, and particularly this plaintiff, of the condition thereof, or to otherwise notify the plaintiff; that at this time she entered the store as a customer and an invitee, and while so in the store she went to the restroom and lavatory, and that by reason of the condition of the floor, of which she had no knowledge, she stepped into the grease, slime and water, and slipped thereon, causing her to fall upon the floor and to fall against and strike her head and back upon a large pillar in the restroom, thereby inflicting upon the plaintiff great, serious and permanent injuries, as are particularly set forth in her complaint. She further alleges that on March 21, 1931, she fell by tripping over a loose carpet and at that time injured her back and vertebrae; that by care and treatment she had overcome said injuries and at the time of the injury herein complained of suffered but little inconvenience therefrom and was able to perform her work; that by reason of the injuries complained of she was damaged in the sum of $17,000.
Defendant, in its answer, admits its corporate character, that it is doing business in Portland, Oregon, and that it has in its store toilets, lavatories and restrooms. It denies every other allegation in the complaint, except it admits plaintiff was injured previously, for which it appears that settlement was made for such previous injury. Defendant further pleads contributory negligence on the part of plaintiff, that if she was injured she was negligent in not looking and observing where she was going and not watching her step and keeping a proper lookout.
The trial court allowed exceptions to the refusal of the court to give instructions requested and not given, and to the modification of such instructions made by the court. No other exception to the charge of the court was reserved by plaintiff.
The trouble with plaintiff's case is that the jury did not find in accordance with plaintiff's testimony. The testimony in the case was conflicting, and it is not the province of the court to weigh the evidence and decide upon the conflict. There was testimony on the part of defendant tending to show that the defendant was not negligent and that the lavatory was not maintained in a bad condition, as asserted by plaintiff. Both the matron, who attended the lavatory, as soon as plaintiff's hurt was reported, and an old employee of defendant, who investigated the condition of the premises, testified that they found no indication of the bad condition of the lavatory, as claimed by plaintiff. Defendant's testimony indicated that plaintiff was not injured in the manner claimed by her or by the negligence of defendant.
Plaintiff complains of the instructions of the court. The cause was submitted to the jury on proper and plain instructions, without any intimation to the jury on the part of the court as to what conclusion they should reach as to the facts. We have carefully examined the lengthy instruction requested by plaintiff and the charge to the jury given by the learned trial judge. All of the requested instructions, in so far as proper, were included in the charge to the jury, not always in the same language as requested but in plain and appropriate diction, without any hint of bias or prejudice. The cause was fairly tried. The general complaint of plaintiff in regard to the charge of the court is not well-founded: Reimers v. Pierson, 58 Or. 86 ( 113 P. 436); Wells v. Clark Wilson Lbr. Co., 114 Or. 297 ( 235 P. 283).
The plaintiff requested the court to charge the jury in part as follows: "that it was the duty of defendant to exercise reasonable and ordinary care to maintain the floor in a condition reasonably safe for the use of the public * * * ". The court instructed the jury, on this point, that both parties were required to exercise ordinary care. This rule is approved under the facts in this case. The court informed the jury that if the plaintiff established, by a preponderance of the evidence, any one of the alleged grievances set forth in her complaint that such negligence was the proximate cause of the injury, and that the plaintiff was not at fault herself in any of the matters set forth in the answer, then she could recover. We think the instructions were eminently fair to the plaintiff.
Plaintiff assigns error in regard to the following instruction:
"In order that the plaintiff may prevail here, as I stated to you, she must show that the defendant Roberts Brothers was negligent and careless with respect to this lavatory in that it was out of condition, and in order for them to be responsible for such a condition, if you do find that it was in such a condition, you must go further and you must find that Roberts Brothers knew of such condition or that it was in such condition such a length of time that they ought to have known it and had the opportunity of a reasonable time to repair the same (or to have placed a warning for the benefit of the public) before they would be called negligent and careless in that particular."
The former attorney for plaintiff called the attention of the court to this instruction and the court corrected it in accordance with plaintiff's counsel's request by adding that part which is enclosed in parentheses, and no further exception was reserved. There was no error in giving the instruction. If the court's instructions are substantially the same as requested, although not in the same form, no error can be predicated on the refusal of the court to give certain requested instructions: Lott v. De Luxe Cab Co., 136 Or. 349 ( 299 P. 303); Gordon v. Curtis Bros., 119 Or. 55, 67 ( 248 P. 158); Astoria So. Ry. Co. v. Pacific Surety Co., 68 Or. 569, 588 ( 137 P. 857).
Plaintiff requested the court to instruct the jury as follows:
"I instruct you that if said injuries were aggravated by reason of her fall in the instant case and her said fall was caused by the negligent and careless acts set forth in her complaint, and she herself was not negligent, then I instruct you that she would be entitled to recover against the defendant to the extent of the aggravation of said former injuries."
Plaintiff assigns error in the refusal of the court to give the same. It will be noticed that this instruction leaves out of the case notice of any defect. It might be said it is partially correct and partially wrong. The court instructed the jury as follows:
"It is alleged that she had suffered injuries heretofore and that certain portions of her former injury were aggravated and rehurt. It is for you to determine the truth of these statements. As I stated to you, the extent of the injury and the character of the injury is a fact necessary to be established as any other fact in the case, and it is dependent upon the evidence that has been submitted to you."
The instruction, as given by the court, covered the main part of the requested instruction. There was no error in this respect.
Plaintiff submitted a motion for a new trial in the words of the statute. No facts were set forth on which error can be predicated. It is not indicated in what respect the court was in error, except as to the refusal to instruct the jury as requested: §§ 2-802, 2-805, Oregon Code 1930. On account of the absence of Judge Tucker, who tried the case, the motion was called to the attention of Judge Stapleton: Rule 12, Circuit Court of Multnomah County, Fourth Judicial District; Easton v. Quackenbush, 86 Or. 374, 378 ( 168 P. 631); Fassett v. Boswell, 59 Or. 288 ( 117 P. 302). Section 2-805, Oregon Code 1930, provides as follows:
"In all cases of motion for a new trial, the grounds thereof shall be plainly specified, and no cause of new trial not so stated, shall be considered or regarded by the court. When the motion is made for a cause mentioned in subdivisions 1, 2, 3, or 4 of section 2-802, it shall be upon affidavit, setting forth the facts upon which such motion is based."
From a careful consideration of all of the facts in the case, irrespective of any irregularity on the part of plaintiff, we do not think that the plaintiff was entitled to a new trial.
Finding no error in the record, the judgment of the circuit court is affirmed.
ROSSMAN, J., not sitting.