Great Atlantic & Pacific Tea Co. v. Randolph

• Decision Date: 14 March 1933
• Docket Number: No. 4962.,4962.
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. RANDOLPH.
• Court: U.S. Court of Appeals — Third Circuit

64 F.2d 247 (1933)

GREAT ATLANTIC & PACIFIC TEA CO. v. RANDOLPH.

No. 4962.

Circuit Court of Appeals, Third Circuit.

March 14, 1933.

John A. Metz, of Pittsburgh, Pa., for appellant.

Oliver K. Eaton, of Pittsburgh, Pa., for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

In this case Mrs. Randolph brought suit against the Great Atlantic & Pacific Tea Company to recover damages for injury caused by her slipping and falling on its store floor, made dangerous by its alleged negligence. She recovered a verdict, and from a judgment entered thereon defendant appeals. The substantial question involved is whether the trial court was constrained to give binding instructions for defendant.

The proofs tended to show defendant had a provision and meat store which plaintiff patronized. In such store it had a pay telephone which customers used. To reach the phone booth, one's pathway led between the meat cooler and the meat block to which the meat was carried and there cut and the residue returned to the cooler. This passageway defendant used to clean and sprinkle with sawdust, but, in spite of such precautions, the nearness of the meat block to the passage was such that particles of meat and fat flew from the block to the passageway. The proof was that this was the usual, and not the unusual, situation. In that regard a witness, who before the accident went to the store several times a week, testified she had often seen scraps of meat in the sawdust. "Yes, I would say almost always there would be scraps on that floor around there * * * I particularly know I had to be careful in walking there." Another witness testified:

"Q. Now, at times, when you went back there, you noticed some meat scraps or something on the sawdust? A. Yes.

"Q. You don't remember any particular date that you saw anything there? A. There was very few times there wasn't something.

"Q. Well, you didn't pay any particular attention to it? A. No. I was careful going back there.

"Q. But you don't remember any particular day, as to what you observed on one particular day, do you? A. Well, it was very nearly every day.

"Q. You went back there practically every day? A. Yes.

"Q. But you didn't pay any particular attention to what was on the floor? A. Yes, I did.

"Q. It was covered with sawdust? A. Because it was slippery."

The proof of another customer was:

"Q. Where you turn around to go to telephone. Did you have occasion to notice, or did you notice, the condition of that passageway, say, the three months prior to March 24, 1928? A. Yes, sir.

"Q. And what did you notice with reference to it, as to what the floor was covered with, and what was on it? A. Sawdust.

"Q. Anything else? A. Meat scraps.

"Q. How frequently would you see meat scraps around that meat block? A. Why, it was on there all the time.

"Q. By that you mean every time you went there? A. Yes, every time I passed."

Still another witness, a boy who worked in the store, testified:

"Q. And it was while you were working for Mr. Randolph over there on the meat side that you noticed something sticky on the floor? A. Yes, sir.

"Q. And while you were working under Mr. Randolph on the meat side, this second time you worked there, how many times did you notice something sticky on the floor? A. There was most always sticky stuff on the floor.

"Q. Where was this? A. Laying around the block.

"Q. Right by the block? A. Laying around the block.

"Q. The floor was always covered with sawdust? A. This sticky stuff was on top of the sawdust.

"Q. Now, as I understand your testimony on direct examination, you noticed this sticky stuff there once or twice? A. It was mostly always there.

"Q. On top of the sawdust? A. Yes, sir."

Another witness, who was a meat cutter and who had been employed in the store, testified, as to the presence of meat and bone on the passageway, that "there was pieces of bone and scraps of meat naturally falls off when you are cutting; you can't...