BROGDEN. J., dissenting.
STACY C. J., concurs in dissent. The evidence on the part of plaintiff was to the effect that about 12 July, 1929, she went to defendant's store to buy a raincoat and some shoes for her boy. That she was directed to the basement department, which was poorly lighted and dark, where the shoes were kept. That there was an aisle or passage way between the tables on which were shoes, and there was a stool between the tables. The stool could be moved around and was one that the clerk sits on to fit shoes, but was out of place and in the aisle, and in going along the aisle between the two tables to look for the shoes, plaintiff testified, in part: "The next step I took, I caught my foot in this stool that was directly in my path. I was looking for shoes on the table, at the time I fell over the stool. . . . The shoe department is dark, it is under the balcony. No electric lights there. . . . Q. It was a movable stool and you were just along there and happened to hit the stool? A. Well, the stool — *Page 637 you didn't usually put stools in the aisle for people to fall over. Q. I didn't ask you that, you just happened to hit the stool; did you step on the stool? A. No. I did not step on it. Q. You stepped against if? A. The stool was directly in the aisle and I hooked my foot in it. . . . Q. Then it was light enough to see the shoes, the stairway, the clerk, that is right, isn't it? A. Yes, and if the stool had been sitting on the table I would have seen the stool. Q. If you had looked for the stool you could have seen it? A. We are not supposed to go along looking for the stool. Q. You did see it after you stepped on it? A. Yes, I saw the girl pick up the stool and push it under the table. I was looking for that then."
In describing her injury, plaintiff testified: "Was in bed three weeks and after that was on crutches for three weeks. Not able to get out of the house, went around inside. I have never been strong in that limb since. In fact there is scarcely a time when there is not a misery there, and just real often I have to sit with that foot elevated to keep the blood out of it, and the evidence is still there of the injury. I struck the stool and the bone is indented and the flesh has grown to the bone, the shin bone, and part of the flesh is on the side. Now, when I walk to the postoffice and back, that place swells and I have to lie down to get any comfort at all."
The defendant denied any negligence and set up the plea of contributory negligence.
The issues submitted to the jury and their answers thereto, were as follows:
"1. Was the plaintiff inured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
2. Did the plaintiff negligently contribute to her own injury as alleged in the answer? Answer: No.
3. What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $1,000." The defendant at the close of plaintiff's evidence, and at the close of the evidence, made motions in the court below for judgment as in case of nonsuit. C. S., 567. The motions were over ruled and in this we can see no error.
It is the well settled rule of practice and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support her cause of action, *Page 638 whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
We think the evidence sufficient to be submitted to the jury. The charge of the court below is not in the record, the presumption is that the court charged the law applicable to the facts. We see no prejudicial error in excluding the evidence of defendant's witness in regard to the way in which the shoe department was lighted. This witness had already stated "The room was I consider very well lighted." Defendant offered other evidence to the same effect. We find
No error.