Dindo v. Grand Union Company

Citation331 F.2d 138
Decision Date16 March 1964
Docket NumberDocket 27714.,No. 248,248
PartiesMrs. Olive DINDO, Plaintiff-Appellee, v. GRAND UNION COMPANY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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 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 double up. Duprey went around the corner of the display rack, and saw that some packages of tea, which were stacked next to the beans facing the next aisle, had been pushed over onto the beans. As he walked around the corner, he heard a man's voice saying "oh, excuse me," and saw someone walking away from the tea area. He straightened the packages out, and then rearranged the beans. Duprey stated that he measured the top shelf, and found that it was 54 inches from the floor. As he recalled the shelf, the cans of beans were stacked three high, but he conceded that there might have been another layer, as Mrs. Galfetti had testified. Thus, if there were four cans, the top can might have fallen about eighteen inches, since each can was 5½ inches high and Mrs. Dindo was 5'4" tall (allowing about a foot for the height of her head and neck).

Charles Owen, the store manager, also stated that the top shelf was 54 inches from the floor. He said that the cans were normally stacked only three high, with a piece of cardboard after the two bottom cans to add stability, and four deep on the shelf. He did not know whether the cardboard was in place at the time. There was a rib between the beans and the tea packages, but it was only about three inches high. He agreed that sometimes customers could not reach the top can on the top shelf. Owen said that the falling of a can from the shelf might be caused by a customer pushing the merchandise from the opposite aisle, or by vibrations from the cellar.

We think the jury was warranted in drawing an inference that defendant was negligent in stacking the heavy cans so high, without a higher divider between the cans and the tea packages on the other side. For this conclusion, it was not necessary to rely on the res ipsa loquitur doctrine, admittedly inapplicable here. Marsigli v. C. W. Averill Co., 123 Vt. 234, 185 A.2d 732 (1962).1 This doctrine may come into play only if there is no direct evidence of the cause of an accident. See 2 Harper & James, Torts, § 19.5 (1958); Jaffe, Res Ipsa Loquitur Vindicated, 1 Buff.L.Rev. 1 (1951).

Duprey's testimony was a complete explanation of how the accident occurred, and there was thus direct evidence from which a jury might reasonably predicate negligence. It is true that plaintiff's counsel belittled this explanation of the accident in his argument to the jury. But the court observed in its charge that negligence might be found in stacking the cans so that they could be easily pushed over from the other side, and the jury was entitled to draw this inference. Although this explanation was produced by the defendant, the jury was nonetheless able to consider it. Defendant waived the benefit of its motion for a directed verdict at the close of plaintiff's case by introducing evidence, and there is open to review only the sufficiency of the evidence as a whole to support the verdict. See, e. g., Capital Transit Co. v. Smallwood, 82 U.S.App. D.C. 228, 162 F.2d 14 (1947); Meier & Pohlmann Furniture Co. v. Troeger, 195 F.2d 193 (8 Cir. 1952); 5 Moore, Federal Practice, ¶ 50.05, at 2322 (2 Ed. 1951); 9 Wigmore, Evidence, § 2496 (3 Ed. 1940).

With regard to the amount of the award, we are satisfied that the trial court did not abuse his discretion in permitting the verdict to stand. The testimony of the osteopathic...

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6 cases
  • In re James L.
    • United States
    • Appellate Court of Connecticut
    • October 19, 1999
    ...by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court's ruling. See Dindo v. Grand Union Co., 331 F.2d 138, 141 (2d Cir. 1964); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). The rationale for this rule is that, by introducing eviden......
  • Sears Roebuck and Co. v. Board of Tax Review of the Town of West Hartford
    • United States
    • Supreme Court of Connecticut
    • July 22, 1997
    ...by opting to introduce evidence in his or her own behalf, waives the right to appeal the trial court's ruling. See Dindo v. Grand Union Co., 331 F.2d 138, 141 (2d Cir.1964); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984). The rationale for this rule is that, by introducing evidenc......
  • United States v. Doyle, No. 710-70.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 6, 1972
    ...of the record as a whole to support the judgment. See Bogk v. Gassert, 149 U.S. 17, 23, 13 S.Ct. 738, 37 L.Ed. 631; Dindo v. Grand Union Co., 331 F.2d 138 (2d Cir.). However, no error is shown by the trial court's action in refusing to sustain the motion to The second issue concerns whether......
  • Armstrong v. Commerce Tankers Corp.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 11, 1969
    ...543, 544; Stiles v. Gove, 345 F.2d 991 (9th Cir. 1965); Gray v. Baltimore & O.R. Co., 24 F.2d 671 (7th Cir. 1928); Dindo v. Grand Union Co., 331 F.2d 138 (2nd Cir. 1964); Hall v. National Supply Co., 270 F.2d 379 (5th Cir. The doctrine of res ipsa loquitur is not applicable here. VIII. THE ......
  • Request a trial to view additional results

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