Colonial Stores Inc. v. Pulley

• Decision Date: 23 April 1962
• Docket Number: No. 5399,5399
• Citation: 125 S.E.2d 188,203 Va. 535
• Parties: COLONIAL STORES INCORPORATED v. LUCILLE ADMON PULLEY. Record
• Court: Virginia Supreme Court

Page 188

125 S.E.2d 188

203 Va. 535

COLONIAL STORES INCORPORATED v. LUCILLE ADMON PULLEY.

Record No. 5399.

Supreme Court of Appeals of Virginia

April 23, 1962.

W. C. Pender (Pender & Coward, on brief), for the plaintiff in error.

Thomas L. Woodward (Pulley & Pulley, on brief), for the defendant in error.

JUDGE: CARRICO

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

Lucille Admon Pulley, the plaintiff, filed a motion for judgment against Colonial Stores Incorporated, the defendant, seeking to recover damages for personal injuries allegedly sustained by her in a fall in the defendant's store at Franklin. A jury trial resulted in a verdict in favor of the plaintiff for $28,016.11, upon which the trial court entered final judgment. The defendant was granted a writ of error.

Although there are a number of errors assigned to the rulings of the trial court, our view of the case requires us to consider only those which present the question of whether there was sufficient evidence to support the jury's finding that the defendant was negligent.

The evidence, which is not in conflict, shows that the plaintiff entered the defendant's self-service store at approximately 1:30 p.m. on April 13, 1959, to purchase groceries. She secured a push-cart, furnished by the store for the use of its customers, and selected about ten items which she placed in the cart.

The plaintiff reached a point in the store where packages of flower seeds were displayed on a stand at the corner of two aisles. She pushed her cart around the corner and, holding on to the handle of the cart with her left hand, turned around and selected some flower seeds. When she turned back, her left foot struck an empty coca-cola bottle lying on the floor. She lost her balance and was thrown backwards against a magazine display stand on the opposite side of the aisle, causing serious injuries to her spine.

The store was well-lighted. Its floors were of asphalt tile, green and cream in color, and the color of the coca-cola bottle blended with that of the tile.

Near the entrance to the store the defendant had installed a machine that dispensed bottles of chilled coca-cola. A receptacle was provided at the machine for empty bottles. The plaintiff's fall occurred at a point 64 1/2 feet from the machine.

The store manager testified, and his testimony was not contradicted, that the store was swept twice daily, between 11 and 11:30 a.m. and between 5 and 5:30 p.m., and at other times when he deemed it necessary; that he knew that the store had been swept on the morning of the accident; that there were 21 employees on duty on the day of the accident and that all employees had been instructed to remove anything that was found on the floor; that two of the employees passed the scene of the fall 15 to 20 times each day, and that one employee was stationed at a counter within sight of the scene for about five hours of the day. When asked why the bottle that caused the plaintiff's fall was not discovered, he said, 'I couldn't tell you, I don't know.'

The basis of the plaintiff's claim against the defendant was the latter's alleged negligence. This negligence, as stated in the motion for judgment, was that the defendant 'negligently and carelessly caused and permitted a certain drink bottle to be and remain upon the floor.'

The burden of proving the defendant's negligence was on the plaintiff. Ordinarily, it is for the jury to decide whether such negligence does, or does not, exist. Steele v. Crocker, 191 Va. 873, 880, 62 S.E.2d 850; Va. Elec. & Power Co. v. Wright, 170 Va. 442, 446, 196 S.E. 580.

We are not unmindful of the fact that the jury has, in this case, determined that the defendant's negligence did exist. But this finding of the jury cannot be permitted to stand unless it is supported by evidence -- evidence which constitutes proof that the defendant breached some duty which it owed the plaintiff, and caused, by such breach, her unfortunate injury. Murphy v. Saunders, Inc., 202 Va. 913, 917, 121 S.E.2d 375; W. T. Grant Co. v. Webb, 166 Va. 299, 302, 184 S.E. 465.

The defendant owed the plaintiff the duty to exercise ordinary care toward her as its invitee upon its premises. In carrying out this duty it was required to have the premises in a reasonably safe condition for her visit; to remove, within a reasonable time, foreign...