Columbia Grocery Co. v. Schlesinger
| Decision Date | 10 March 1936 |
| Docket Number | No. 15111.,15111. |
| Citation | 200 N.E. 414,102 Ind.App. 617 |
| Parties | COLUMBIA GROCERY CO. v. SCHLESINGER. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Marion County; Joseph R. Williams, Judge.
Suit by Adolph Schlesinger, administrator of the estate of Julia Schlesinger, deceased, against the Columbia Grocery Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Fesler, Elam, Young & Fauvre, of Indianapolis, for appellant.
Wymond J. Beckett, of Indianapolis, for appellee.
Suit was brought by appellee for damages on account of the death of Julia Schlesinger. It appears that her death was caused by a fall occasioned by the slipping of a mat lying between the storm door and the inner door of the store belonging to appellant. To the second amended complaint herein filed appellant answered in general denial and the issues raised thereby were tried before a jury. The jury returned a verdict for the appellee for $4,500 and also answered two interrogatories, as follows:
Judgment was rendered on the verdict.
Appellant's motion for a new trial, containing fifteen grounds was overruled, and this appeal followed. The error assigned is the overruling of the motion for new trial and the alleged errors which are properly presented are herein discussed.
The second amended complaint alleges, among other things, that because of the negligent condition in which appellant maintained the entrance of the Columbia Grocery, the mat lying in the said entrance slipped, causing decedent to fall on her hip, thereby injuring her to such an extent that death resulted.
The evidence discloses that on the floor in the vestibule between the storm door and the main door of the grocery store was a link rubber mat, 35 1/2 inches long and 29 1/2 inches wide; that the vestibule floor was made of smooth marble; that the width of the storm door was 34 inches; that the width of the inner door at the north end of the vestibule was 36 inches; that the storm door opened out over the sidewalk; that the step from the sidewalk up to the vestibule was 6 1/4 inches high; that it was 36 1/2 inches from the storm door to the inner door that opened into the store; that the width of the vestibule at the store door was 54 inches.
Snow had fallen on various days beginning with the 16th day of December, 1930, so that on January 23, the day decedent met with her injury, there was 4.8 inches of snow on the ground. The accident happened about 5:30 o'clock p. m. After having made a purchase in the store, and as she was leaving, the decedent, in stepping upon the mat in the vestibule, was thrown to the floor and sidewalk, by reason of the mat slipping, and suffered the injuries from which she died. At that time the marble floor in the vestibule was slick and icy. The mat had slipped when she stepped on it, so that it was hanging outside the storm door. Decedent was wearing shoes with cuban heels and over them wore rubber galoshes. There was also evidence from the manager of the store that others had fallen at the same place where the accident herein took place.
[1] Appellant contends that the evidence is not sufficient to support the verdict. While the complaint contains several separate allegations of negligence, in a final analysis the gist of the action is that appellant was negligent in allowing the floor and the mat thereon to become and remain in a dangerous condition. There is evidence from which the jury could find such negligence. As to whether or not appellant had notice of the negligent condition of the vestibule, the record contains testimony to the effect that the manager told Mr. Schlesinger some time after the accident “*** we have had a number of people fall there. ***” This is some evidence from which the jury could find that appellant had knowledge that a defect existed. We must therefore hold that the evidence does support the verdict. From what we have said, it appears that appellant's contention that the verdict is contrary to law is not sustained, as we find nothing therein to make it contrary to law.
Appellant next complains that the court erred in giving instructions numbered 1, 6, and 7 requested by the appellee. We have read these instructions carefully and find that they correctly state the law applicable to the facts herein, when read together with all the other instructions; therefore, the giving of such instructions was not error.
[2][3] The court did not err in refusing to give instructions numbered six and eight requested by appellant. Appellant does not point out any evidence that would show or tend to show that this vestibule was constructed, maintained, or “regarded reasonably safe *** by the average” storekeeper, as the instruction recited. Instructions not sustained by evidence should not be given and requests therefor are properly refused. City of Bloomington v. Woodworth (1907) 40 Ind.App. 373, 81 N.E. 611;Closson v. Bligh (1908) 41 Ind.App. 14, 83 N.E. 263.
[4][5] The court refused to give appellant's requested instruction...
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