Acme Markets v. Remschel

• Decision Date: 08 March 1943
• Docket Number: Record No. 2627.
• Citation: Acme Markets v. Remschel, 181 Va. 171, 24 S.E.2d 430 (1943)
• Parties: ACME MARKETS, INCORPORATED v. ALFRED M. REMSCHEL.
• Court: Virginia Supreme Court

Page 171

181 Va. 171

ACME MARKETS, INCORPORATED v. ALFRED M. REMSCHEL.

Record No. 2627.

Supreme Court of Virginia, Richmond.

March 8, 1943.

Present, All the Justices.

1. INSTRUCTIONS — Objections — Presumption from Failure to Object. — Where there are no objections to instructions they are conclusively presumed to have correctly expressed the applicable law.

2. NEGLIGENCE — Duty of Owner or Occupant to Persons on Premises — Invitees. — An owner or occupant of lands or buildings, who directly or by implication, invites or induces others to go thereon or therein, owes to such person a duty to have the premises in a reasonably safe condition, and to give warning of latent or concealed defects.

3. NEGLIGENCE — Duty of Owner or Occupant to Persons on Premises — Invitees. — The owner or occupant of lands or buildings is not an insurer but he must use ordinary care to render the premises reasonably safe for the visit of the invitee.

4. NEGLIGENCE — Duty of Owner or Occupant to Persons on Premises — Invitees. — The owner or occupant of lands or buildings must give notice or warning of an unsafe condition which is known to him and is unknown to the invitee, but notice is not required where the dangerous condition is open and obvious to a person who is exercising reasonable care for his own safety. In the absence of knowledge or warning of danger, the invitee is not required to be on the lookout for it because he may assume that the premises are reasonably safe for his visit.

5. NEGLIGENCE — Province of Court and Jury — When Negligence a Question for Jury. — If the defendant's conduct is open to two reasonable views or conclusions, one of which would lead to a finding of negligence against it, while the other would lead to a finding that there was no negligence on its part, then such negligence would be for the jury.

6. NEGLIGENCE — Province of Court and Jury — Where but One Conclusion Could Be Reached — Case at Bar. — In the instant case, an action for damages received by plaintiff in defendant's parking lot, the evidence showed that defendant permitted a stump to remain in the lot, partially obscured and in an area not sufficiently lighted, after defendant had been notified of its existence, and that plaintiff, who was free from contributory negligence, stumbled and fell over the stump injuring himself.

Held: That the negligence of defendant could only become a question of law if but one conclusion could be reached.

7. NEGLIGENCE — Province of Court and Jury — Whether Particular Act Has Been Performed. — In reaching a decision as to when a case is for the jury and when it is not, it is necessary to find whether a particular act has been performed or omitted and to determine this involves a question of fact, but whether the performance or omission was a breach of legal duty is a question of law.

8. NEGLIGENCE — Definitions. — Negligence is the failure to perform some act required by law or doing the act in an improper manner.

9. NEGLIGENCE — Province of Court and Jury — Determination of Duty and Performance. — The law determines the duty, and the jury, upon the evidence, determines whether the duty has been performed.

10. NEGLIGENCE — Province of Court and Jury — Determination of Duty and Performance. — The law imposes duties upon men according to the circumstances in which they are called to act. Whether the circumstances exist which impose the duty upon a particular person is for a jury.

11. NEGLIGENCE — Province of Court and Jury — Where Reasonable Men May Differ. — The presence or absence of negligence is a question for the jury, not only where there is a conflict in the evidence on the subject, but also where there is room for a difference of opinion among reasonable men as to the proper inference which might fairly be drawn from unconflicting evidence. Diverse inferences may reasonably be drawn from undisputed facts. Whenever the facts proved without dispute require the exercise of reason and judgment, so that one reasonable mind may infer that a controlling fact exists and another that it does not exist, there is a question for the jury.

12. EVIDENCE — Weight and Sufficiency — Insufficient Evidence Is No Evidence. — Insufficient evidence is, in legal contemplation, no evidence.

13. TRIAL — Questions of Law and Fact — Where There Is No Evidence Which Should Reasonably Satisfy Jury. — If there is no evidence that ought reasonably to satisfy a jury that the fact sought to be proved is established, then no jury question is presented.

14. EVIDENCE — Questions of Law — Duty of Trial Court. — The trial court must always primarily say whether there is any evidence upon which a jury can properly proceed to find a verdict for the party producing it upon whom the onus of the proof rests.

15. NEGLIGENCE — Province of Court and Jury — Mixed Question of Law and Fact. — Whether one has been guilty of negligence is a mixed question of law and fact.

16. NEGLIGENCE — Province of Court and Jury — Where Facts Undisputed. — Where there is no controversy in regard to the facts or the inferences that fairly may be drawn from them, the question of negligence is one of law.

17. NEGLIGENCE — Contributory Negligence — Burden of Proof — Case at Bar. — In the instant case, an action for damages received by plaintiff in defendant's parking lot, the evidence showed that defendant permitted a stump to remain in the lot, partially obscured, and in an area not sufficiently lighted, after defendant had been notified of its existence, and that plaintiff, who was free from contributory negligence, stumbled and fell over the stump injuring himself.

Held: That the burden of proving contributory negligence was upon defendant.

18. NEGLIGENCE — Contributory Negligence — Plaintiff Not Required to Look for Unusual Dangers — Case at Bar. — In the instant case, an action for damages received by plaintiff in defendant's parking lot, the evidence showed that defendant permitted a stump to remain in the lot, partially obscured, and in an area not sufficiently lighted, after defendant had been notified of its existence, and plaintiff, who was free from contributory negligence, stumbled and fell over the stump injuring himself.

Held: That plaintiff was not required to look for unusual dangers which were not open and obvious, and since he had no prior knowledge of the existence of the stump he had a right to assume that no such obstruction would be in his line of travel to his automobile.

19. NEGLIGENCE — Contributory Negligence — Lack of Ordinary Care — Case at Bar. — In the instant case, an action for damages received by plaintiff in defendant's parking lot, the evidence showed that defendant permitted a stump to remain in the lot, partially obscured, and in an area not sufficiently lighted, after defendant had been notified of its existence, and plaintiff, who was free from contributory negligence, stumbled and fell over the stump injuring himself.

Held: That the conclusion that plaintiff was not exercising ordinary care was not required as a matter of law.

20. NEGLIGENCE — Province of Court and Jury — Case at Bar. — In the instant case, an action for damages received by plaintiff in defendant's parking lot, the evidence showed that defendant permitted a stump to remain in the lot, partially obscured, and in an area not sufficiently lighted, after defendant had been notified of its existence, and plaintiff, who was free from contributory negligence, stumbled and fell over the stump injuring himself.

Held: That the questions of negligence and contributory negligence were for the jury.

Error to a judgment of the Corporation Court of the city of Alexandria. Hon. Wm. P. Woolls, judge presiding.

The opinion states the case.

Gardner L. Boothe, for the plaintiff in error.

Charles Henry Smith, for the defendant in error.

GREGORY, J., delivered the opinion of the court.

Acme Markets, Incorporated, a grocery chain, claims to be aggrieved by a final judgment for $10,000 entered against it and in favor of Alfred M. Remschel for damages for alleged personal injuries suffered by Remschel when he stumbled over the stump of a post left on a parking lot which was operated by the plaintiff in error in connection with its store in Alexandria.

Except in one important particular which will be adverted to later, there is no substantial conflict in the evidence. On Saturday, March 22, 1941, at approximately 8 p.m., Remschel, who was the plaintiff below and who now will be likewise referred to, drove his automobile into the parking lot of the defendant which was provided by it for the benefit of its customers. The parking lot adjoined the store of the defendant and, like the store, abutted on King street. The lot was level and hard surfaced. The plaintiff parked his car on the east side of the lot and then went into the store to purchase groceries. He purchased eggs, milk, potatoes, and other groceries and they were placed in a bag which he carried from the store. In proceeding to his automobile, he went across the parking lot but before reaching the automobile he stumbled over the stump of the post. This stump was from 4 inches to 18 inches high according to the testimony of at least one witness, but from an inspection of the photographs which were filed as exhibits, it is clearly observed that it was nearer 4 to 8 inches high and not 18 inches.

The stub was left after cutting a post that originally stood there serving as one of the two posts that marked the former entrance to the lot. On three sides of the post in question, concrete had been built up in such a manner as to divert the wheels of automobiles when getting too close to the post. When the post nearest the stone was cut, instead of digging up the stub, it was left with three sides flush with the built-up concrete. The side nearest the store was left exposed, forming an obstacle protruding from 4 to 8 inches on that side.

The defendant had...