MONTGOMERY WARD & CO.
WRIGHT et ux
Judgment reversed and cause remanded for new trial.
Knapp, Boyle, Bilby & Thompson, Arthur Henderson, of Tucson, for appellant.
Hall, Catlin & Molloy, of Tucson, for appellees.
Phelps, Justice. La Prade, C. J., and Udall, Stanford and De Concini, JJ., concurring.
[70 Ariz. 320] This is an action by plaintiff for damages on account of personal injuries suffered, based upon the alleged negligence of Montgomery Ward & Company in the treatment and maintenance of floors in its retail mercantile establishment at Tucson. The evidence is in conflict on this latter point.
Rachel Wright with whom her husband, Benjamin G. Wright, joined in this action, will be referred to in the opinion as plaintiff, and Montgomery Ward & Company as defendant. The plaintiff alleged in substance that on or about the 10th of March, 1947 at about 4:30 in the afternoon of that date she entered the store of defendant as invitee and proceeded upon the street level floor to the rear of the store. That as a result of the careless, reckless and negligent acts of the defendant in placing upon the floor of said store building an excessive amount of oily, slippery, liquid substance or material, and in failing to use reasonable care in applying the same, or reasonable or ordinary care in the maintenance of the floor the application of said substance, she slipped and fell. That as a proximate result thereof she was injured, as set forth in the complaint. The answer of the defendant constitutes a general denial and in addition thereto alleges the contributory negligence of the plaintiff.
[70 Ariz. 321] The cause was tried to a jury and plaintiff recovered a judgment in the lower court. A motion for a new trial and for judgment notwithstanding the verdict, were duly filed and denied by the trial court. Defendant appeals from the final judgment
and presents six separate assignments of error for our consideration.
Assignments 1 and 2 challenge the sufficiency of the evidence to take the case to the jury both at the close of plaintiff's case and at the close of all of the evidence. Unless we completely ignore the plaintiff's testimony we cannot say that the court under the circumstances of the case committed error in denying defendant's motions. The evidence in this case takes it out of the rule contended for by defendant as laid down in the case of Mona v. Erion, 223 A.D. 526, 228 N.Y.S. 533, 2d, 250 N.Y. 572, 166 N.E. 329, and DeBaca v. Kahn, 49 N.M. 225, 161 P.2d 630. In the latter case the last application of the floor dressing was some seventy days previous to the accident. In the instant case small quantities were applied daily. The method employed in its application could result in the condition described by plaintiff, in a small concentrated area.
Assignments 3 and 4 are directed at the court's refusal to grant defendant's motion for a new trial and for a judgment N.O.V. Both of these assignments are based upon the same grounds set forth in assignments 1 and 2 and compel the same conclusion.
Assignments 5 and 6 present a far more serious question. Assignment 5 challenges the admissibility of testimony given by the witness Hunt. On cross-examination it was developed by counsel for plaintiff over the timely objection of defendant's attorney that Hunt had testified in a case previously tried by that court involving another person who had slipped and fallen on a different ...