Great Atlantic & Pacific Tea Co. v. McLravy

• Decision Date: 08 June 1934
• Docket Number: No. 6434.,6434.
• Citation: 71 F.2d 396
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. McLRAVY.
• Court: U.S. Court of Appeals — Sixth Circuit

71 F.2d 396 (1934)

GREAT ATLANTIC & PACIFIC TEA CO. v. McLRAVY.

No. 6434.

Circuit Court of Appeals, Sixth Circuit.

June 8, 1934.

R. M. Shivel, of Grand Rapids, Mich. (Linsey, Shivel & Phelps, of Grand Rapids, Mich., and Charles R. Fox, of Detroit, Mich., on the brief), for appellant.

G. B. Wheeler, of Grand Rapids, Mich. (Kim Sigler, of Hastings, Mich., and Knappen, Uhl, Bryant & Snow, of Grand Rapids, Mich., on the brief), for appellee.

Before HICKS and SIMONS, Circuit Judges, and HAHN, District Judge.

HICKS, Circuit Judge.

The Great Atlantic & Pacific Tea Company appealed from a judgment against it in favor of Matilda McLravy for damages for personal injuries.

Appellant operated a grocery store on the south side of State street in Hastings, Mich. Appellee, a customer, while leaving the store about 4 o'clock on the afternoon of February 2, 1929, slipped upon an accumulation of ice and snow and fell, causing the injuries for which she sued. Appellant questions the denial of a directed verdict upon two grounds:

(1) That there was no substantial evidence to establish negligence upon its part; and (2) that appellee was guilty of contributory negligence as a matter of law.

It is unquestionably the law that a storekeeper owes to his customers the duty of exercising reasonable care to keep his premises and access thereto in a safe condition for their use, and upon the evidence we do not think that appellant was entitled to a directed verdict upon either of the grounds urged.

There was no controversy over the arrangement of the store front. Access was had from the sidewalk to the door by means of a vestibule, having a maple floor 58 inches long by 62 inches wide at the front end, and extending from a concrete sill at the edge of the sidewalk to an oak sill under the door. The concrete sill was 15¾ inches wide and its top was 3¾ inches above the sidewalk. Pilasters rested upon each end of it. The bases of the pilasters were 16 inches square but the columns upon the bases were only 6 inches square. There were two show windows, one on each side of the entrance, each about 5 feet wide. The sides of the vestibule were of glass and formed portions of the show windows.

The testimony of Dunning, the manager, and Flory and Gardner, clerks, tended to show that appellee slipped on the sidewalk at a spot several feet from the building, though in front of it. If she slipped on the sidewalk there was, of course, no liability; but appellee testified that she slipped off the ledge (the concrete sill) and fell to the side-walk. She was corroborated by Mrs. McNamara. This sill constituted a portion of the vestibule under the control of appellant and there was therefore a sharply disputed question of fact properly to be determined by the jury as to the exact point where the mishap occurred.

The evidence touching the condition of the vestibule, including the sill, at the time of the accident, was equally contradictory. The manager and clerks testified that there was no ice in the vestibule; that the clerks had cleaned it at 6:30 in the morning, and that one of them, Flory, had again swept it out about noon, and that the only snow or ice there in the afternoon were small patches which had been tracked in by customers. On the other hand, appellee testified that when she went into the store the vestibule was icy and slippery; that she stayed about fifteen minutes making purchases and that as she came out she slipped upon the ice, which was still there.

Mrs. McNamara, her companion, testified that the vestibule was icy both when they went in and came out; that she could see where snow had been tracked in upon it and had frozen; that she came out ahead of appellee and as she stepped off the sill she "kinda...