Blanton v. Great Atlantic & Pacific Tea Co., 6726.
| Decision Date | 26 October 1932 |
| Docket Number | No. 6726.,6726. |
| Citation | 61 F.2d 427 |
| Parties | BLANTON v. GREAT ATLANTIC & PACIFIC TEA CO. |
| Court | U.S. Court of Appeals — Fifth Circuit |
G. Seals Aiken, of Atlanta, Ga., for appellant.
W. Colquitt Carter, of Atlanta, Ga., for appellee.
Before BRYAN, SIBLEY, and WALKER, Circuit Judges.
Blanton sued the Great Atlantic & Pacific Tea Company for damages, alleging an injury negligently inflicted on his ankle by the falling on it of one of a number of boxes piled on the edge of the sidewalk in front of the company's store on Broad street, in Atlanta. The jury found against him, and he appeals. He testified that on July 30, 1930, between 6:30 and 7 p. m., in broad daylight, as he approached the store, walking along the crowded sidewalk, he saw one or two of the men working in the store bring out some boxes and throw them up on the stack three or four feet high, and as he passed one fell down against his ankle without his touching it. An infected wound resulted, and on August 2d he went to the hospital and had his leg dressed and was put to bed for twenty-one days and then went on crutches unable to work for more than two months. He was partially disabled for more than a year, losing his average earnings of $25 per week. He made no complaint to the company at the time, nor until in September. Other witnesses testified to his having a bad leg. The company's sales manager, Newell, testified that the first complaint was made in October, Blanton then stating not that a box fell on him, but that he had struck his leg against the projecting corner of a box; that after investigation he could learn nothing of the occurrence and so reported to Blanton; that the company frequently put its garbage and trash in covered boxes out on the sidewalk between 5:30 and 8 p. m., as required by the city, but that so far as he knew Blanton might have gotten hurt anywhere else. Another witness, Cates, produced a sick benefit claim signed by Blanton on August 11, 1930, in which Blanton claimed he was first taken sick on August 9th, at 4 p. m., the sickness referred to being the accident to his ankle; and Cates testified that Blanton told him the injury was done by hitting his foot against a box in front of a store at Faith's Crossing at the Georgia Railroad & Power Company's tracks. Blanton testified in reply that the date of the sick benefit claim had been altered from August 1st, and that he had not stated that he hit his foot against a box or that it occurred at Faith's Crossing. A female witness to whom Cates owed rent testified that the character of Cates was bad, and she would not believe him on oath. Blanton introduced a section of the city code which forbids placing any trash, lumber, or other obstructions on any public street or sidewalk. The company introduced another section which, within a district which includes the company's store, authorized the placing of garbage, ashes, and other trash in cans and covered boxes on the margin of the sidewalk between 5:30 and 8 p. m., for removal by the city. No general motion to direct the verdict was made by plaintiff, so we are not called upon to consider the sufficiency of the evidence to support the verdict for the defendant. It is, however, plain that, while the evidence showed substantial damages if the defendant was liable, the jury might justifiably have concluded either that the plaintiff did not receive his injury at the place and in the manner he claims, or that, if he did, there was no sufficient proof that the persons placing the boxes did so wrongfully or were acting under the authority of the defendant. If the jury believed the contradictory statements attributed to Blanton to be established, they might have rejected his testimony as impeached, or have treated his statements as admissions that the injury occurred elsewhere or was due to his own want of care in striking the box. Or if the jury believed the occurrence was as testified by Blanton, since he said the box which fell had been there but a moment, there would have been no responsibility on the owner of the premises unless the persons so placing it acted for and with the authority of the owner. Blanton did not identify these persons, nor distinctly prove that they were employed by the company. His...
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