Although there are two questions in this case, the prevailing opinion discusses and rests upon but one. Since that is the crucial question here, however, I shall, likewise, limit myself to the same question. That question is whether there was sufficient evidence to sustain the verdict.
Although the appellant made a motion for new trial as well as for judgment notwithstanding the verdict, the motion for new trial was not passed upon by the court, and the assignments of error are based exclusively on the denials of the motion for nonsuit, the motion that the case be taken from the jury and judgment entered for defendant [appellant], and the motion for judgment notwithstanding the verdict. Since the appellant did not stand upon its motion for nonsuit but proceeded to introduce evidence, the matter must now be viewed from the standpoint of the motion to take the case from the jury and enter judgment for defendant, and the motion for judgment notwithstanding the verdict. Alkire v. Myers Lbr. Co., 57 Wash. 300, 106 P. 915;Olsen v. Peerless Laundry, 111 Wash. 660, 191 P. 756; Statev. Brown, 178 Wash. 588, 35 P.2d 99.
Coming to the one question here involved, the majority opinion frankly concedes that it is the settled *Page 532 rule in this state that, in passing on a motion for judgment notwithstanding the verdict of a jury, no element of discretion is involved; that such motion may be granted only when it can be judicially determined, as a matter of law, that there is neither evidence nor reasonable inference from evidence to sustain the verdict; and that, in ruling on such motion, the evidence will be viewed in the light most favorable to the party who won the verdict.
A very important factor in this case, and one that must not be lost sight of, is that the jury viewed the premises (at appellant's own request) and saw the condition of the floor of the market at the time of the trial. The jury, therefore, was able to observe whether the floor was smooth or rough and particularly whether it had become worn to such a degree as to form depressions that would permit water to collect and stand in pools. If water was actually standing in pools at the time, further observation would, of course, be unnecessary. If the floor happened to be dry at the time, the jury could then by inspection determine whether there were, nevertheless, depressions in which water would collect. In either event, the jury actually saw what this court cannot, from the record, see.
Now, it does appear from the record that the market had been built in 1929, and that from four thousand to six thousand people frequented it daily, and that, on exceptionally busy days, as many as twelve thousand people visited it. What the effect of that many people tramping the floor daily would have upon it in that length of time, was something that could best be determined by looking at it, which the jury did.
The record is replete with evidence to the effect that the Japanese tenants not only used sprinkling cans throughout the day, but also at various times placed wooden tubs, containing water, in the aisles, and that *Page 533 water for the cans and tubs was obtained from a faucet in the immediate vicinity. The record also shows, by the testimony of a number of witnesses, that water was allowed to run over and stand in the aisles to such an extent that, unless customers had on good shoes, their feet would get wet.
The majority opinion even concedes that there was "some testimony in the record to the effect that appellant's agents had been advised of the fact that the floors of the market were frequently wet and were, in consequence, slippery." That it was slippery, is shown by the fact that, when respondent fell, her heel left a skid mark from one and one-half to two feet long. Appellant admitted in its answer that,
". . . at times said vendors [the Japanese] wash celery and other vegetables in open tubs and buckets filled with water in said aisle or walk-way, and that water from said tubs slops over on said aisle or walk-way, making the same damp or wet,"
but asserted that this practice took place exclusively early in the morning, and that thereafter, prior to noon of each day, all wet and damp places in the aisles were covered with sawdust, which absorbed the water and left the aisles substantially dry.
This admission by the appellant was communicated to the jury in the instructions given by the court, and whether the practice of allowing water to run over the aisles was confined to the forenoons or continued through the afternoons became a question of fact on which the evidence was in conflict. It is a fact that the janitors made their rounds of the market in the afternoons, and it is also a fact that, almost immediately after the respondent was injured, a janitor appeared and put sawdust on the spot. So it must have been wet at the time. The janitors made their rounds every half-hour, which, for argument sake, it may be conceded *Page 534 was often enough for the discharge of their ordinary duties.
But the negligence of the appellant consisted in what the jury may have found to be a defect in the floor, one that would permit water to collect in pools. If that was the case, then half-hourly inspections were not a sufficient protection to the public, whose visitations were constant. A dangerous condition is not alleviated by periodic inspections. Between inspections, many accidents could happen, just as this one happened. The law upon the subject of the duty of storekeepers is as stated in Stone v.Smith-Premier Typewriter Co., 48 Wash. 204, 93 P. 209, from which the majority opinion quotes as follows:
"The law requires a storekeeper to maintain his store room in such a condition as a reasonably careful and prudent storekeeper would deem sufficient to protect customers from danger while exercising ordinary care for their own safety." (Italics mine.)
The duty is to maintain the premises in such a condition as a reasonably careful and prudent storekeeper would deem sufficient, not simply to make a periodic inspection of what may be an unsafe condition. Moreover, it is not the law that a storekeeper may permit a dangerous condition to exist and then excuse it by saying that reasonably careful and prudent storekeepers would permit such condition to continue. In any event, it would be for the jury, and not for the court, to say whether, under the evidence, the condition was such as reasonably careful and prudent storekeepers would deem sufficient to protect their customers.
The gist of the majority opinion appears to be contained in a statement put in the form of an interrogatory, as follows: *Page 535
"Assuming that the floor of the aisles in appellant's market was often damp or wet, can it be held that this constituted a dangerous condition, and one so liable to cause injury to appellant's patrons as to render appellant responsible to respondent in damages?"
The opinion does not answer the question directly, but, after quotation from a number of authorities thought to be controlling, concludes by saying:
"We are of the opinion that no primary negligence was, in this case, proven against appellant."
Coming directly to the question propounded by the majority, the answer to it is, in my opinion, simply this: The court may not say, as a matter of law, that such a condition was dangerous or one so likely to cause injury to appellant's patrons as to render appellant responsible in damages; neither can the court say, as a matter of law, that such a condition was not dangerous and would not render appellant liable. It was a question of fact for the jury to determine, under the circumstances shown by the evidence. A part of that evidence was the physical condition of the floor as found by the jury on inspection. The jury did the very thing that it was called upon to do, namely, to determine whether, under the circumstances, it was dangerous to permit the floors to remain wet and damp to the extent, as the jury may have found, that water was allowed to collect in pools.
On the motion for judgment notwithstanding the verdict, the trial court, who heard and saw the witnesses, determined that there was evidence to sustain the verdict and, therefore, evidence from which the jury could conclude that, under the circumstances, the condition was so dangerous as to render appellant liable.
In the face of all that, this court, which has neither seen the premises nor heard nor seen the witnesses, *Page 536 says, as a matter of law, that the condition, under all the circumstances, and contrary to the finding of the jury, was not so dangerous as to render appellant liable. It seems to me that this court has either invaded the province of the jury or else that it must be held that a slippery condition occasioned by water can never be considered as the product of negligence. It must be conceded that a broken hip occasioned by slipping on a wet floor is just as serious as one occasioned by slipping on a greasy floor. And it should also be conceded, I think, that, if a storekeeper negligently permits water to collect or stand on his premises to which the public is invited, when by reasonable care he could have prevented it, he should be liable.
I shall now briefly refer to the cases considered in the majority opinion upon the subject under discussion.
In Wiard v. Market Operating Corp., 178 Wash. 265,34 P.2d 875, a woman sustained an injury by slipping on "a grease spot, or something," as it was described in the evidence. The court held the evidence sufficient to take the case to the jury. This court attempts to distinguish that case from this on the ground that there the floor was greasy, while here it was only wet. The fallacy of the court's reasoning, it seems to me, lies in the fact that it holds that grease may be slippery, while water, under any circumstances, cannot be. The question in a given case is not what the substance that causes the slippery condition is, but whether the slippery condition, no matter how caused, is the result of negligence.
The next case is Cornwell v. Kresge Co., 112 W. Va. 237,164 S.E. 156. The opinion in that case clearly shows that the customer saw the condition of the floor, realized that it was slippery, but continued to make use of it. There is no such evidence here. The respondent *Page 537 positively testified that she did not note the condition of the floor and did not realize that it was slippery.
The next case is that of Abt v. Leeds Lippincott Co.,109 N.J.L. 311, 162 A. 525. In that case, a guest at a hotel slipped while descending a stairway. But, as the court stated in its opinion, there was no evidence that the stairs were out of repair, or that the polishing had been done in any improper manner. In fact, the plaintiff therein testified that the stairs were finished in the same way as the floors in the place where she customarily walked. Here, the jury, having seen the floor, may have seen and found that it was worn to such an extent as to permit the collection of water, causing a slippery condition. If so, how could it be said that the floor was maintained in a proper condition?
The case of Bridgford v. Stewart Dry Goods Co., 191 Ky. 557,231 S.W. 22, presents a state of facts that immediately distinguishes it from this. In that case, a basement in a department store had become flooded with water to a depth of an inch. It was conceded by plaintiff that the condition was not due to defendant's negligence. Within a few minutes after the flood occurred and while the janitors were engaged in mopping the floor, plaintiff, who saw the wet condition, walked across the floor and slipped. But in the case before us, we have a condition for which appellant itself was responsible; the floor was not being repaired at the time of the accident, and the respondent was not aware of the condition of the floor.
The case of Kraus v. Wolf, 253 N.Y. 300, 171 N.E. 63, contains a short per curiam opinion reading as follows:
"A small pool of water in a slight depression, caused by wear, on the surface of an outdoor step, creates no *Page 538 dangerous condition, and reasonable care did not require the defendant to prevent or remedy such condition."
Whether the action was against a shopkeeper or the owner of a private residence, is not disclosed. Whether the plaintiff was an invitee for business purposes, or a casual caller, or a trespasser, we are not told. Whether it was raining at the time or whether the sun was shining, does not appear. In any event, it was an outdoor step, and not inside the building at all. That case has no bearing upon the facts presented in this case.
The next case is that of Miller v. Gimbel Bros., 262 N.Y. 107,186 N.E. 410. In that case, there had been a heavy rainfall, causing the floor of an entrance-way to a department store to become wet; there was also some mud in the corner of a revolving door in the entrance. As shown by the quotation in the majority opinion, it did not appear that the plaintiff had slipped on the mud. It also appeared that there had been a heavy rainfall on that day, and that the owner was not responsible for the water being brought into the entrance. But more than that, it did not appear that any defect in the construction or condition of the floor had caused the water to collect or stand in pools. There was no evidence that the floor, when wet, was dangerous. In the case at bar, there was testimony, as the majority opinion concedes, that appellant's agents had been advised that the floors of the market were frequently wet and were, in consequence, slippery.
The case of Abbott v. Richmond County Country Club, 211 A.D. 231,207 N.Y. Supp. 183, contains this significant statement:
"No actual defect in the floor was claimed upon the trial other than that it was smooth and slippery, though the plaintiff had used it upon several prior occasions and knew of itscondition." (Italics mine.) *Page 539
It was shown that the flooring was the customary one used in golf club locker rooms, and that it had been covered with linseed oil to prevent dust. There was no evidence of any defect in the floor. In the case at bar, the worn condition of the floor was directly in issue.
The next case cited is that of Kresge Co. v. Fader, 116 Ohio St. 718,158 N.E. 174, 58 A.L.R. 132. Here, again, it appeared that the wet condition of the floor had been created by persons over whom the defendant had no control; that the plaintiff herself had been walking in the rain and knew that her own shoes were wet when she entered the store; and that there were no defects in the floor itself. That is not the situation in the case before us.
In Batson v. Western Union Telegraph Co., 75 F.2d 154, the injured party saw the employee of the defendant with a pail containing an oily substance, and knew that he had just oiled and mopped the floor. She also saw the very condition of which she subsequently complained. That made a wholly different case from that with which we are here concerned.
In Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278, the plaintiff entered defendant's market by way of a flight of four steps which had been freshly painted and then covered with boards to protect the paint until it dried. The steps were in good condition, and there was a hand-rail running along their side. Upon leaving the market, plaintiff returned by way of the steps and, in doing so, slipped on one of the boards. The court observed that the method of protecting freshly painted steps by laying boards thereon was one commonly used, that they were not inherently dangerous, and that the condition was perfectly obvious to plaintiff. Upon that state of the evidence, the court held that the owner was not liable. Again, we note that there was *Page 540 no defective condition in the premises, that the appliances used were those commonly employed, and that the plaintiff was actually aware of the condition. We do not have that situation in this case.
The last case cited is that of Jones v. Kroger Grocery Baking Co., 273 Ill. App. 183. There the plaintiff supposedly slipped on a small piece of spinach on an otherwise clean and open floor of a grocery store. The owner did not know of the presence of the spinach on the floor. The court held that negligence had not been shown. Manifestly, the decision was correct, because there was no evidence of knowledge, actual or constructive. Here, we have evidence of the previous condition of the floor, and knowledge on the part of the appellant.
I have analyzed all the cases on which the majority opinion relies, and assuming that they were all correctly decided, I do not see how they are applicable here.
In this case we have as an issue the worn condition of the floor; we have an admission that tubs of water were placed in the aisles and that the water slopped over and rendered the aisle wet; we have evidence that the water on other occasions stood in the aisle; we have evidence that there was a pool of water in which respondent stepped; we have evidence that janitors were supposed to keep the aisles dry; and we have evidence from which it may be inferred that the jury found the floor to be in such condition as would permit the water to stand in pools. How can it be said, in the face of all that evidence, that there was neither evidence nor reasonable inference from evidence that appellant was negligent?
It is suggested in the prevailing opinion that, if water was present on that occasion, respondent herself could have, and should have, seen it. It is not suggested *Page 541 that respondent was guilty of contributory negligence. The opinion does not assert, nor could it assert, that respondent was guilty of contributory negligence, because that would assume primary negligence on the part of appellant, which the opinion emphatically denies. But more than that, the court instructed the jury that a customer in a market under cover was not required to exercise the same degree of care as to where she was walking, or to observe the condition of the floor therein, as she would be required to exercise upon an open sidewalk or street; that the invitation to enter the building was for the very purpose of having the eyes of the customer attracted to goods on display. No error is assigned upon the instruction, and it must, therefore, be taken as the law of the case.
I am convinced that there was evidence to take the case to the jury, and sufficient evidence to support the verdict. I therefore dissent.
HOLCOMB, MITCHELL, and BLAKE, JJ., concur with STEINERT, J. *Page 542