GLOWACKI et ux.
A. J. BAYLESS MARKETS, Inc.
Rehearing Denied Dec. 22, 1953.
[76 Ariz. 298] Brown & Langerman, Herbert B. Finn, Phoenix, for appellants.
Moore & Romley, Phoenix, for appellee.
This is an appeal from an order granting defendant-appellee's motion for judgment n. o. v.; from the judgment entered thereon and from an order denying plaintiffs-appellants' motion for a new trial. The parties will be hereinafter referred to as plaintiffs and defendant as they were designated in the lower court.
The facts are that on October 6, 1950, Mary Glowacki, wife of Joseph Glowacki joined as plaintiff herein, entered the store of defendant located at the corner of 19th Avenue and Osborn Road in this county and state, as an invitee for the purpose of purchasing groceries for the family. After plaintiff had obtained said groceries and was proceeding to walk through the aisles of the store leading to the cashier's counter to pay for said groceries preparatory to leaving the store, she stepped into a 'puddle' of water approximately one and onehalf feet in diameter and one-fourth inch, more or less, in depth causing her to slip and fall upon her back on the concrete floor from which she sustained a compression fracture or break of the 12th dorsal vertebra. Plaintiffs allege the injury is permanent in character and that Mrs. Glowacki has suffered and will continue to suffer great pain throughout her natural life, etc.
Action was brought in the superior court of Maricopa County and upon trial of the issues involved, the jury awarded plaintiffs a verdict in the sum of $1500. Upon motion of defendant judgment n. o. v. was entered for it and plaintiffs appeal to this court presenting nine separate assignments of error. Assignment No. 1 is based upon the order of the court granting defendant's motion for judgment n. o. v. Assignments 2, 3, 4, 5 and 9 are based upon the court's refusal to grant plaintiffs' motion for a new trial upon the grounds set out in the respective assignments. The remaining assignments, 6, 7 and 8, are based upon instructions given by the court upon request of defendant for the reasons set out therein.
[76 Ariz. 299] We are of the view that the trial court committed a number of reversible errors during the course of the trial of this case. In order, however, to avoid extending this opinion unduly we will discuss one assignment rather fully and limit the discussion of the other assignments, in so far as possible, to merely pointing out the error or errors committed. We will first discuss assignment No. 5 which asserts that the court's denial of plaintiffs' motion for a new trial based upon its comment upon the evidence and upon the court's alleged rebuke of counsel in the presence of the jury, constituted reversible error and deprived plaintiffs of a fair and impartial trial. Specifically plaintiffs contend that the following remark of the court constitutes a comment upon the evidence:
'Thirty five years ago I was on a concrete job in the summertime. I am afraid that I am not sympathetic to the views that are being expressed.'
In answer to this assignment of error counsel for defendant presents the proposition of law that the remarks of a trial judge during the course of a trial must be evaluated on the basis of the context and circumstances in which used. In support of this proposition of law, counsel contents himself with the statement that:
'The alleged comment on the evidence was made in overruling an offer of 'expert' testimony to prove how long the puddle of water had been on the
floor prior to the accident. The offer was overruled; so, in fact it never became evidence in the case. * * *'
We agree with the correctness of the legal proposition above set forth but we do not agree that the solution of the problem presented is as simple as counsel indicates. Article 6, section 12, of the state constitution provides in part that:
'Judges shall not charge juries with respect to matters of fact nor comment thereon, but shall declare the law.'
In order to determine whether the statement of the court above quoted amounts to a comment upon the evidence, let us briefly examine the circumstances, and the context in which the statement was made. The transcript of the evidence discloses that counsel for plaintiffs had sought at length, but unsuccessfully, to qualify the witness Keplinger to testify as an expert concerning the length of time the puddle of water, in which plaintiff slipped and fell, had been on the floor. The purpose of the evidence was to show it had been on the floor a sufficient length of time to charge defendant with knowledge of its presence in the event it were shown to have been poured or spilled on the floor by a stranger to the defendant.
In attempting to qualify Keplinger as an expert it was developed that the witness was a registered civil engineer in Arizona with twenty-one years' experience with the Arizona Highway Department, presumably at road construction; that he had also had experience with various types of concrete or cement floors in connection with the construction[76 Ariz. 300] of houses and buildings as engineer for subdividers, builders, owners, etc.; that he had inspected the floor in defendant's building where the accident occurred on two different occasions but had not at that time made any test concerning the length of time water would stand on the particular floor. The witness, in answer to questions propounded by counsel for plaintiffs and by counsel for defendant on voir dire, had testified that he had had experience with water standing on both waxed and unwaxed (concrete) floors both in casual observation and in testing, and its effect upon the color of the floor where permitted to remain thereon; that due to the water soaking into the pores of the concrete the color of the floor would begin to turn dark after water had stood upon it for a short time first in spots, then over the entire surface, and that it would become darker depending upon the length of time the water was permitted to remain thereon; that if water were poured on the floor it would probably stand there and if left long enough it would 'soak in and evaporate'. He testified further that from his experience and training he was able to tell what effect water would have if placed upon the particular floor in question; that a chemical analysis of the concrete floor was not necessary to enable him to tell its effect upon the floor.
In answer to questions by counsel for defendant on voir dire the witness testified that all concrete has the same basic reaction to penetration of water; that atmospheric conditions unless extreme would make no appreciable difference in the process of penetration; that if the variable was in the neighborhood of a hundred degrees it might make some difference but that a variable of 10 to 15 degrees would have no effect whatever. He stated there would be 'not too much difference if the floor were waxed or unwaxed' but there would be some difference.
Counsel for plaintiffs then asked a hypothetical question based upon facts theretofore elicited including the size of the puddle, the depth of the water, the ring around the edges of the water and other facts bearing upon the issues in the case, and upon this hypothesis, asked the witness how long, in his opinion, the water had been on the floor at the time of the accident. An objection was sustained to the question upon the ground that the witness was not shown to be qualified to give expert testimony upon the subject. He was then asked if there were other factors not mentioned in the hypothetical question he would need to know in order to answer the question, objection to which was sustained. The court in sustaining the objection, stated it was not a proper matter for opinion evidence, that the witness could describe the condition of affairs; the jury themselves could draw conclusions, and declared that:
'* * * We are not permitting an engineer to take a look at a wet spot and say how long it took this wet spot to get ...