Sears, Roebuck & Co. v. Scroggins

• Decision Date: 09 March 1944
• Docket Number: No. 12701.,12701.
• Citation: 140 F.2d 718
• Parties: SEARS, ROEBUCK & CO. v. SCROGGINS.
• Court: U.S. Court of Appeals — Eighth Circuit

140 F.2d 718 (1944)

SEARS, ROEBUCK & CO. v. SCROGGINS.

No. 12701.

Circuit Court of Appeals, Eighth Circuit.

February 18, 1944.

Rehearing Denied March 9, 1944.

Robert George Winter, of St. Louis, Mo. (Roscoe Anderson, William R. Gilbert, and Anderson, Gilbert, Wolfort, Allen & Bierman, all of St. Louis, Mo., on the brief), for appellant.

Douglas H. Jones, of St. Louis, Mo., for appellee.

Before SANBORN and WOODROUGH, Circuit Judges, and HULEN, District Judge.

WOODROUGH, Circuit Judge.

This is an appeal from a judgment awarding damages to William Scroggins for personal injuries suffered as a result of a fall over boxes which had been placed in the aisle of defendant's store by its employees.

On the morning of May 29, 1941, at a few minutes past 10 o'clock, plaintiff, William Scroggins, his two sons, Bill and Joe, and a friend, William Reiter, entered the Sears Roebuck store on Grand Avenue in St. Louis and descended the stairway leading to the basement so that one of the sons might purchase some paint and a gadget for putting pin stripes on an automobile. The paint counter extended along the south wall of the basement, and leading into and forming a "T" with an east and west aisle parallel and adjacent to the paint counter was a north and south aisle, its sides formed by a dishware counter on the east and a glassware counter to the west. Plaintiff and his party proceeded down the north and south aisle to the paint counter. While Bill Scroggins was buying the desired items, a sticker placed on the paint counter and bearing the legend "God Bless America" caught plaintiff's fancy, and he turned and walked back north three or four steps so as to get a "distance look" at the emblem. Then he turned again toward the paint counter and with his left hand resting on the dish counter requested that the son, Bill, purchase an emblem characterized by its "golden glow." After the son had complied with the request, Reiter and plaintiff's sons started along the north and south aisle toward plaintiff on their way out of the store. As one of the sons drew even with plaintiff, plaintiff began to turn to leave the store and tripped backwards, falling over three boxes of glassware which had been placed in the aisle, and severely injured his back.

Defendant, appellant here, assigns as error the overruling of its motions for directed verdict at the close of plaintiff-appellee's case and at the conclusion of the evidence, and of the denial by the trial court of motion for judgment notwithstanding the verdict, so that this appeal questions the sufficiency of the evidence to support the judgment. Appellant's contentions are that plaintiff did not prove that the boxes in the aisle caused his fall; that the evidence justified two inferences — one that the fall was caused by the boxes, the other that the fall was caused by a diseased condition of the plaintiff, which would preclude defendant's liability, and that plaintiff was guilty of contributory negligence.

(1) Appellant argues that there was no definite proof that the boxes caused Scroggins to trip and fall, contending that the testimony did not clearly show exactly what Scroggins did with his feet before he fell, and that he nowhere testified that any part of his body touched the boxes before the fall. However, from an examination of the testimony we are persuaded there is substantial evidence of such causal connection, making the question one for the jury.

Plaintiff testified in part as follows:

"I was standing facing this paint counter, and as they come by me I aimed to turn to go north and something tripped me and I tripped backwards * * * I aimed to try to catch myself — I grabbed at this counter of dishes and it seemed to me like I knocked down a thousand of them * * * as I fell my Bill yelled * * * and he grabbed me by the right wrist, but he was so close to me he couldn't hold my weight off the floor, so consequently my hip — the lower part of my hips caught the whole brunt of the lick on the concrete floor * * * it knocked me out. When I come to, my feet was up on some boxes * * * little cardboard boxes * * * 8 inches wide * * * about 12 or 14 inches high * * * there were three * * * in an `L' from the counter.

"I was facing south and the dish counter was on my left and I had my left hand just resting on the edge of the dish counter. The boys was in front of me * * * about 8 or ten feet * * * as they came near I started to turn * * *.

"Q. And then you went over this obstacle? A. I went backwards over it, yes.

* * * * *

"Well, boxes was in front of me, and I lay there with my feet up on those boxes. * * * Some man came around * * * and he asked me if I had fainted and I said `No sir. I didn't faint' and Joe, my son, * * * said, `No, he didn't faint. He fell over these boxes.' And the man said, `Why did that boy leave those boxes there'".

On cross examination by defendant's attorney, after stating that he had been standing in the aisle as the boys started toward him, plaintiff continued:

"I started to make the quarter back step, to turn with my right foot.

* * * * *

"Q. Then what happened? A. I was tripped from behind.

"Q. Tripped from behind? A. Yes, sir.

"Q. Just as you made this turn, then you were tripped from behind? A. As I started to make it, yes.

* * * * *

"Q. * * * you said a quarter step, didn't you? A. Yes, sir. A quarter step backwards to my right.

"Q. And you were tripped? A. Yes, sir.

"Q. Did you see those boxes afterwards? A. I seen them afterwards, yes, sir.

* * * * *

"Q. Were the boxes standing up against this counter when you looked at them? A. They was up against the counter after I had fell over them. I looked and I seen my feet was still up on the boxes.

* * * * *

"Q. When you started to turn, didn't you get dizzy or something, grab a hold of here (indicating), knock off some dishes, and kind of ease yourself down to the floor like that (indicating)? A. No, sir."

Defendant continued cross examination and introduced depositions and asked plaintiff if he had made the same answer to the same questions therein as follows:

"A. And as I started to turn, to make a step, whenever you start to turn you make a quarter step in that direction when you start to turn, and you don't turn on your heel. As I started to make my turn there, there was something tripped me from behind.

"Q. Do you remember giving that answer? A. That is right."

Further along the same colloquy is repeated, and plaintiff answered:

"* * * I aimed to turn to go with them, and it tripped me."

Joe Scroggins testified:

"There were counters on either side, and as we proceeded toward my father, my father started to turn and go with my brother who was a few steps in front of Bill Reiter and myself, and as he started to turn, he fell backwards, and my brother grabbed him by the right wrist and held his head and shoulders up off of the concrete floor * * *. His feet was on the boxes. * * * At that time, there was some gentleman walked up and * * * said: `Did you faint? Did you faint?' The man seemed rather excited. He plaintiff said: `No sir, I didn't faint.' I said, `No, sir. He fell over these boxes here.' He turned his head and looked at the boxes and said, `My God! Why did that boy leave those boxes there?'"

The deposition of Harry B. Schwartz, superintendent of the store at the time of the accident, was introduced in evidence. He testified as follows:

"Yes. I asked him if he were the man that fainted; he said no, that he had tripped over a box.

* * * * * *

"Q. Did he show you or did you see the box over which he had tripped? A. I saw it after he was taken upstairs.

"Q. Now, how close to the place where you found him was that box or boxes? Tell us just what you did see. A. Well, as I approached him on the chair and asked him if he were the man that fainted, he said, no, he stated that he had tripped over a box and hurt his back.

* * * * *

"Q. Were the glasses on display in these boxes on the floor? A. They were on the floor.

"Q. The boxes? A. In a box, yes.

"Q. And the glasses were in that — A. In a box.

"Q. Were the boxes open, was the glassware visible in the boxes? A. I don't remember whether they were or not.

"Q. Well, were the boxes just piled in the aisle? A. No, they were placed right by the counter, right flat against the counter.

"Q. And what was their purpose, was it for display or for sale or for packing or unpacking? A. For unpacking.

"Q. For unpacking? A. Yes.

"Q. They had been delivered to the counter for someone to unpack and placed on the counter? A. Either on the counter or under the counter.

"Q. And they had not yet been unpacked, is that the idea? A. Not at that time."

It would unduly and unnecessarily lengthen this opinion to further set out the large amount of testimony of similar nature and import given by a number of other witnesses called by the parties. It is our conclusion that the over-all and cumulative effect of such testimony warranted the submission of the question to the jury. Defendant's assertion that if plaintiff had actually fallen backwards over the boxes, he would have used some such phrase in testifying as, "As I stepped back, I felt something with my leg", overlooks individual differences in modes of expression and description. The phrases utilized by plaintiff adequately described the relationship between the boxes and his fall and effectively show that the boxes were responsible therefor. He testified that "something tripped me" and the position of his feet when he regained consciousness clearly suggests that the boxes were the "something" that tripped him. There is just as much merit in the phraseology employed by appellee with respect to establishing that the boxes caused his fall as there is in the form suggested by appellant, and it would be far from reasonable to require plaintiff to use any specific form of testimony to establish his cause of action.

(2) Appellant takes the position that the...