Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Philip L. Sullivan, Judge.
Before SPARKS and MAJOR, Circuit Judges, and BRIGGLE, District Judge.
The defendant appeals from a judgment for $5,000 rendered against it in an action for damages for injuries sustained as the alleged result of its negligence in permitting a stairway in its store to become and remain slippery from water and snow, causing appellee to fall. Appellant moved for a directed verdict at the close of appellee's evidence, and again at the close of all the evidence, and here contends that the court erred in denying its motion.
The injury as to which complaint is made occurred in February, 1939. The evidence showed that appellee, with a friend, entered a store maintained by appellant at about eleven forty-five for the purpose of having lunch there. The store was a large one, and during the noon hour many people came and went. The stairway in question was located a few feet inside the front door. On the day of the accident it was snowing, and many peopel had tracked in slush and snow so that the floors and stairs were wet and slippery. Appellee and her friend, finding no places for them to have lunch on the main floor, started down the stairs to the basement where there was another lunchroom. Appellee was wearing galoshes over her shoes. As she started down the steps, noticing that they were muddy and slippery, she took hold of the banister to keep from falling, but as she reached the fourth or fifth step from the top, her foot slipped and she fell all the way to the landing, striking her head and becoming unconscious. First aid was rendered in the store, after which the manager took her to their physician for examination and treatment. He took two X-ray photograhs of her head and advised her to go home and remain in bed with ice packs on her head. She returned to work the following day, but suffered so from headaches and nervousness that she felt unable to work, and thereafter remained at home for the next two and a half months, in bed part of the time, and under the care of her physician at all times. She returned to work in May for about two months until her vacation of a month, after which she again returned and remained until Christmas when she quit. She was not working at the time of the trial the latter part of January. While she was working she earned sixteen dollars a week. Her bill for medical services up to the time of trial amounted to seventy-five dollars.
The sole charge of negligence here is that appellant permitted its stairway to become and remain slippery and wet and in a dangerous condition. There is no charge of any defect in the stairs, or that they were not properly lighted at all times.The slush and snow were not placed there by the act of appellant, but were tracked in by customers.
After a careful reading of the record in this case, we are convinced that it does not disclose such negligence on the part of appellant, and freedom from negligence on the part of appellee, as to justify the judgment entered in favor of the latter, and that appellant's motion for a directed verdict should have been sustained. We think it must be conceded that storekeepers are not insurers of the safety of their patrons, but are required to use only "ordinary care to make the premises as reasonably safe as may be consistent with the practical operation of the business." Dire v. Balaban & Katz, Inc., 241 Ill.App. 199. Confronted by facts somewhat similar to those of the case at bar, the Illinois Appellate Court in Murray v. Bedell Co., 256 Ill.App. 247, held that the trial court should have directed a verdict in favor of the defendant. The fall there occurred in the vestibule instead of on the stairway just inside the entrance as here, but we do not consider that a singificant distinction. The court there seems to have based its decision on the fact of comparative knowledge of the parties, saying,
"From the testimony of the plaintiff it is apparent that the danger, if any, was clearly evident to her, as well as the defendants, and that she was aware of the condition and of the possibility of sustaining a fall before she undertook to pass over and along the floor space of the vestibule.
"The condition described by the witnesses is one that is not only not unusual, but is customarily to be found on such days as described in the testimony, in vestibules of this character and the sidewalks and the premises surrounding entrances to public places. * * *
"In the case at bar the plaintiff was as well apprised of the condition existing in the vestibule as the defendant, and should be held to as high a degree of care for her own safety as would be required of the defendant."
This conclusion is consistent with the general rule, as stated by the Illinois Supreme Court in Calvert v. Springfield Light Co., 231 Ill. 290, 83 N.E. 184, 185, 14 L.R.A., N.S., 782, 12 Ann.Cas. 423, where the court said:
"The law is well settled that an owner or occupant of land, who by intitation, express or implied, induces or leads others to go upon premises for any lawful purpose, is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public, or to those who are likely to act upon such invitation, and if there are hidden dangers upon thepremises, he must use ordinary care to give persons rightfully upon the premises warning thereof * * * ."
It is obvious in the case at bar that nothing was hidden from appellee, that she was well aware of the slippery and wet condition of the stairway as she started to descend it. She stated that she took hold of the banister as she started down because she realized that there was a possibility of falling. She presumed that her own galoshes were wet as she entered the store, having walked through the slush and snow, and she could see that there was slush and snow on the stair tracked in by other people.
Appellee sought to prove by the testimony of a number of witnesses who had used the steps about the time of the accident how dangerously slippery they were, a condition admitted by the assistant manager who stated that he had given orders to the porter shortly before the time of the accident to mop them. There was the positive testimony of that porter that he had mopped them, "just before I went to lunch * * * around 11:15, between 11:00 and 11:30," as opposed to the testimony of appellee's witnesses, that the stairs were very ...