331 F.2d 138 (2nd Cir. 1964), 248, Dindo v. Grand Union Co.

Docket Nº:248, 27714.
Citation:331 F.2d 138
Party Name:Mrs. Olive DINDO, Plaintiff-Appellee, v. GRAND UNION COMPANY, Defendant-Appellant.
Case Date:March 16, 1964
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 138

331 F.2d 138 (2nd Cir. 1964)

Mrs. Olive DINDO, Plaintiff-Appellee,

v.

GRAND UNION COMPANY, Defendant-Appellant.

No. 248, 27714.

United States Court of Appeals, Second Circuit.

March 16, 1964

Argued Jan. 9, 1964.

Page 139

Cornelius O. Granai, Barre, Vt., for plaintiff-Appellee.

Kyle T. Brown, St. Johnsbury, Vt. (Witters, Akley & Brown, St. Johnsbury, Vt., on the brief), for defendant-appellant.

Before LUMBARD, Chief Judge, and KAUFMAN and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge:

While shopping in the Grand Union supermarket in Barre, Vermont on December 10, 1959, plaintiff Dindo was struck on her left shoulder by a 28-ounce can of pork and beans which fell from the top shelf of a display counter. She sued the Grand Union Company for her resulting injuries, and recovered a $12,500 verdict, which Grand Union now seeks to overturn, asserting insufficiency of evidence to sustain the verdict, excessiveness of the verdict and prejudicial errors in the conduct of the trial.

The evidence on how the accident happened was quite uncomplicated. Mrs. Dindo and a close friend, Mrs. Galfetti, were proceeding down one of the aisles in the supermarket, Mrs. Galfetti in front, pushing their baskets. Plaintiff was close to the display counter, but did not touch it in the area from which the can fell. She suddenly felt something strike her on the shoulder, causing a sharp pain which made her cry out. Looking around, she saw that several cans of beans had fallen from the shelf

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and were on the floor. Mrs. Galfetti confirmed that Mrs. Dindo had made a brief outcry and appeared to be doubled up in pain when she turned around, and that more than one can had fallen. She added that the large cans had been stacked four high on the shelf, and were difficult for her, a five-foot-tall woman, to reach. One of the store employees, Charles Duprey, came over and asked if Mrs. Dindo was all right and she answered that she thought so. The two women completed their shopping, though they did not remember how long they stayed in the store or how much merchandise they bought, paid for their groceries and left. When she got home, Mrs. Dindo found that she had a can of beans in her bundle, though she did not remember picking one out. She inferred that one of the cans had fallen into her shopping cart.

Duprey, the employee who went over to Mrs. Dindo after the accident, testified for the defense. He said that he was walking down the aisle behind Mrs. Dindo and Mrs. Galfetti, and was about twenty-five feet from them when he saw a can fall off and strike her on the shoulder. Only one can fell, according to him. Duprey reported the incident to the assistant manager, who asked Mrs. Dindo whether she was all right, receiving an affirmative answer. He heard no outcry, and did not see her...

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