Great Atlantic & Pacific Tea Co. v. Chapman

• Decision Date: 07 June 1934
• Docket Number: No. 6447.,6447.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. CHAPMAN.

72 F.2d 112 (1934)

GREAT ATLANTIC & PACIFIC TEA CO. v. CHAPMAN.

No. 6447.

Circuit Court of Appeals, Sixth Circuit.

June 7, 1934.

Byron Kuth of Cleveland, Ohio, and Gregor B. Moormann, of Cincinnati, Ohio (Kuth & Ehrke, of Cleveland, Ohio, on the brief), for appellant.

M. C. Harrison, of Cleveland, Ohio, and I. S. Ballard, of Akron, Ohio, for appellee.

Before MOORMAN, HICKS, and ALLEN, Circuit Judges.

ALLEN, Circuit Judge.

This is an appeal from a judgment rendered in favor of the appellee for damages for personal injury.

As a preliminary question, appellant urges that the District Court erred in overruling its second motion for new trial filed on the ground of newly discovered evidence. The granting or denial of the motion was in the sound discretion of the trial court, and is not reviewable except for clear abuse of discretion. National Surety Co. v. Jean, 61 F. (2d) 197 (C. C. A. 6). No such clear abuse of discretion existed in this action by the District Court.

Appellant contends that the trial court erred in overruling its motion for a directed verdict at the close of plaintiff's testimony, renewed at the close of all the evidence. It urges (1) that there was no substantial evidence of negligence on the part of the appellant, and (2) that the appellee was guilty of contributory negligence as a matter of law. It was the duty of the appellant to exercise ordinary care on behalf of its customers to have its premises and the entrance thereto in a reasonably safe condition. McNeil v. William G. Brown & Co., 22 F.(2d) 675 (C. C. A. 1); Great Atlantic & Pacific Tea Co. v. Weber, 51 F.(2d) 1051 (C. C. A. 3).

Upon the question of appellant's negligence, the appellant operated a retail grocery store in Akron, Ohio, on the day upon which this accident occurred. The front entrance to the store consisted of a vestibule or recess, raised from the ground. From the recess or vestibule one stepped down to a smooth concrete strip, approximately ten feet wide which covered all of the premises immediately in front of the store, slanting with a grade of about one inch to the foot down to the public pavement maintained by the city of Akron.

On the morning of February 7, 1930, the appellant's store opened at 7 o'clock. At approximately 8 o'clock appellee came to the store, purchased a sack of flour weighing 24½ pounds, and a can of Crisco, and walked out of the front entrance. His feet flew forward, and he fell. The walk had snow on it, and appellee had no knowledge that there was ice on the sidewalk until he discovered that where his foot slipped "there was ice under the snow." In the fall he suffered an impacted fracture of the left femur.

The United States weather reports for the city of Akron showed that the two days before the accident had been considerably colder than the day of the accident, and the temperature on that morning was higher than freezing. One witness testified that the private pavement in front of the store was very slippery, covered with ice, and that this ice was covered "with a light skift of snow." Another witness testified that there was a "little skim of snow on top of the ice," and that the snow upon the private pavement "had been trampled. It showed the effect of having been walked over considerably." The appellee said: "I discovered a mark on the sidewalk where my feet had flew from under me. It was just a mark of my feet slipping and scrubbing the snow off of the ice." This testimony was sharply controverted. However, the record presents substantial evidence from which the jury might find that ice had existed on the private pavement for a considerable period of time, long enough to put the appellant on notice of the dangerous condition, and that it was concealed by a light fall of snow.

If substantial evidence be introduced sufficient to take the...