Curry v. Heck's, Inc.
| Decision Date | 02 April 1974 |
| Docket Number | No. 13346,13346 |
| Court | West Virginia Supreme Court |
| Parties | Freda CURRY and Eugene Curry v. HECK'S, INC., a corporation. |
Syllabus by the Court
'Before directing a verdict in a defendant's favor, every reasonable and legitimate inference favorable to the plaintiff fairly arising from the evidence, considered as a whole, should be entertained by the trial court, and those facts should be assumed as true which the jury may properly find under the evidence.' Point 1, Syllabus, Fielder v. Service Cab Company, 122 W.Va. 522, 11 S.E.2d 115.
Danny O. Cline, Sutton, for appellants.
Johnson & Johnson, Charles G. Johnson, Clarksburg, for appellee.
This is an appeal from a final judgment of the Circuit Court of Harrison County in an action instituted by the plaintiffs, Freda Curry and Eugene Curry, her husband, against the defendant, Heck's Inc., a corporation. In that action the plaintiff, Freda Curry, alleged that she was injured on the premises of the defendant. The trial court, after all of the evidence was introduced, directed a verdict in favor of the defendant and the plaintiffs prosecute this appeal.
Plaintiff, Freda Curry, on June 3, 1968, went onto the premises of the defendant for the purpose of exchanging an item formerly purchased. Upon entering the store she walked up an aisle toward the office during which time she passed a rack upon which ladies clothing was displayed. As she walked up this aisle she stepped on a small clear plastic pin and slipped but did not fall to the floor because 'I caught myself on the clothing there.' This resulted in the injury to her back about which she complains. She immediately went to the office and told the assistant manager what had happened and gave him the plastic pin upon which she had slipped. This pin, made of clear plastic, is approximately one inch in length and is used on the clothing which is displayed on the rack. The pins are attached to the clothing when they come from the manufacturer.
It is alleged in the complaint that the defendant negligently and carelessly failed to maintain its premises, particularly the floor thereof, in a reasonably safe condition and that by reason thereof the plaintiff, Freda Curry, was injured. She further alleged that she sustained serious permanent bodily injuries and will continue to require medical attention, therapy and hospitalization. The complaint also contains a claim by plaintiff Eugene Curry for recovery of sums expended for medical costs, surgery, therapy, hospitalization and nurses care for his wife. In addition, he sues for the loss of society, companionship, consortium and services of his wife. His total claim amounted to $15,000.00. Plaintiff Freda Curry's claim was in the amount of $50,000.00.
The defendant, in its answer, denied that it was negligent and further asserted that any injury received by the plaintiff was caused by her own negligence.
In her testimony plaintiff Freda Curry related the happenings which resulted in her alleged injury; stated that there were several plastic pins on the floor along with cigarette butts and some boxes and related in some detail the extent of her injuries and treatment including hospitalization which was made necessary thereby. The assistant manager testified, stating that he had observed the floor on many occasions, one being at least within an hour from the time of the plaintiff's fall and that he observed no plastic pins on the floor. He said that he instructed all employees to watch out for and pick up any such pins or other objects. He readily acknowledged that these plastic pins, which came on the clothing from the manufacturer, would, on occasion, fall on the floor and that from time to time he has picked up such pins from the floor. The floor is constructed of tile blocks. He testified that he knew that these pins had a tendency to fall on the floor but stated that the defendant had done everything in its power to pick them up and keep the floor safe for customers.
At the conclusion of all of the evidence the defendant moved that a verdict be directed in its favor, stating as grounds therefor that this being a case of a foreign object on the floor and not a defect in the floor it was incumbent upon the plaintiff to show that the defendant knew or should have known by the exercise of reasonable care of the existence of his pin on the floor; that no such showing was made by the plaintiff; that the assistant manager had checked the floor within an hour of this accident and nothing...
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