Cherry v. Sampson

• Decision Date: 23 May 1950
• Citation: 232 S.W.2d 610,34 Tenn.App. 29
• Parties: CHERRY v. SAMPSON.
• Court: Tennessee Court of Appeals

Page 610

232 S.W.2d 610

34 Tenn.App. 29

CHERRY v.SAMPSON.

Court of Appeals of Tennessee, Eastern Section.

May 23, 1950.

Rehearing Denied July 11, 1950.

Certiorari Denied by Supreme Court Aug. 31, 1950.

Williams & Williams, Chattanooga, for plaintiff in error.

H. M. Vaughn and Lawrence C. Loy, Chattanooga, for defendant in error.

HALF, Judge.

We speak of the parties as they appeared in the court below.The plaintiff, Georgia Sampson, sued to recover for personal injuries she sustained in a fall in the place of business of the defendant, Gertrude K. Cherry, under the name of I. F. Cherry Dry Cleaning Co.The fall was caused by her foot catching on to a molding at the base of a counter.A trial by jury resulted in a verdict in plaintiff's favor for $1,200.00, which was approved by the able trial judge when tested by defendant's motion for a new trial.

The gist of the assignments of error is that the trial judge erred in refusing peremptory instructions at the close of the proof, because: (a) there is no evidence to support the verdict, and (b)the plaintiff was guilty of contributory negligence as a matter of law, barring a recovery.

This requires a review of the evidence, but 'such review is not to determine where the truth lies or to find the facts, that not being our province in jury cases.It is only to determine whether there was any substantial evidence to support the verdict; and it must be governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict.'Rose & Co. v. Snyder, 185 Tenn. 499 at page 508, 206 S.W.2d 897, 901.

The defendant has several dry cleaning establishments in Chattanooga, and has owned and operated the one at 209 West Ninth Street since the year 1929.Something like 12 or 15 years ago she built a counter therein, separating the working space from that used by the patrons.This counter extended all the way across the room except for a gate attached thereto allowing employees access to both sections of the room.At the base of this counter was a narrow molding extending to the gate which was on the right, facing the counter.This molding was flush with the floor to a point near the right end where it appears to be appreciably higher than the floor.We consider it immaterial whether this was a vice in the original construction, as indicated by defendant's witness Hatfield, or whether it was due to the sagging of the floor, the building being old and dilapidated.Plaintiff testified the floor was lower at this particular point.This molding was insecurely attached to the base of the counter at this point for about 36 inches.Nails had been driven in at this space but an examination made on the second day after the accident showed these nails were bent and rusty and had not been driven into the base of the counter.This molding was sprung about 3/4 of an inch from the base of the counter and dirt and debris had collected between it and the counter.The photographs filed in evidence indicate there was a space between the bottom of this molding and the floor sufficient to allow debris to collect therein.

Plaintiff was a patron of this establishment and had been there many times prior to the day in question.She had not noticed anything wrong with the premises.No other accident had occurred there.

Late on the afternoon of Saturday, February 7th, 1948, the plaintiff went into this place of business to get some articlesshe had left there for cleaning.It was raining and she was wearing galoshes which were about an inch longer than her shoes.The place of business was crowded with other patrons ahead of her.She took her position at the extreme right end of the counter awaiting her turn.When the others had been served she asked for her material, which was then placed on the counter.She paid the charge, took her parcel and turned to the right to pick up a bag of groceries.The toe of her right galosh caught under this molding.She pulled loose, suddenly throwing her weight on her left leg and causing her to fall, resulting in the injuries sued for.The loose molding slapped back in place with a loud noise.An examination made the following Monday morning showed the defects before mentioned.The rusty nails indicated this condition had existed for a considerable period of time.

The plaintiff was an invitee, on a mission for the mutual benefit of the parties, and she was properly occupying a space provided for patrons of the defendant.The defect in the molding was not obvious.

Any person, who expressly or by implication invites others to come upon his premises, whether for business or any other purpose, has the duty of being reasonably sure that he is not inviting them into danger, and to that end must exercise ordinary care and prudence, to render the premises reasonably safe for the visit.Chattanooga Warehouse & Cold Storage Co. v. Anderson, 141 Tenn. 288, 210 S.W. 153;Buckeye Cotton Oil Co. v. Campagna, 146 Tenn. 389, 242 S.W. 646;Worsham v. Dempster, 148 Tenn. 267, 255 S.W. 52;Garis v. Eberling, 18 Tenn.App. 1, 71 S.W.2d 215;Gargaro v. Kroger Gro. & Baking Co., 22 Tenn.App. 70, 118 S.W.2d 561;Anderson v. Peters, 22 Tenn.App. 563, 124 S.W.2d 717;American Nat. Bank v. Wolfe, 22 Tenn.App. 642, 125 S.W.2d 193;Dolan v. Bry Block Co., 23 Tenn.App. 47, 126 S.W.2d 376.

We have pointed out that this counter was built some 12 or 15 years prior to the accident.The molding was not flush with the floor at the right end.Whether this was due to original faulty construction, or to the sagging of the floor, or a combination of both factors, is not a matter of great moment.It existed.And the jury was warranted in concluding it had been in existence for a considerable period of time.

This tends to charge the defendant with constructive notice.The fact that defendant's employees in charge of this office swept by this molding daily tends to supply actual notice.It is true they say that this sweeping would have disclosed the defective condition of this molding, if it had been defective.Ergo, not having been discovered it was not defective.Probably the jury concluded that by the exercise of ordinary care they could have observed or discovered this condition.Certainly, that seems to be a reasonable inference.

We think the question of defendant's negligence was properly submitted to the jury, and that its verdict is supported by material evidence.Smith v. Sloan, Tenn.Sup., 225 S.W.2d 539.

It is said the plaintiff was guilty of contributory negligence as a matter of law; that she did not act with due circumspection and prudence when she undertook to pull her foot loose; that she should have put down her bundle and have...