F. W. Woolworth Co., Inc. v. Patrick
| Decision Date | 04 May 1936 |
| Docket Number | 32191 |
| Court | Mississippi Supreme Court |
| Parties | F. W. WOOLWORTH CO., INC., v. PATRICK |
1 NEGLIGENCE.
Plaintiff suing for injuries sustained in fall down stairs in store, to establish danger from worn condition of steps, had to show that besides being worn, steps were in such unsafe condition as to make them dangerous for use in ordinary way by persons exercising common care.
2 NEGLIGENCE.
Evidence in action for injuries sustained in fall down stairs in store held insufficient to support verdict for plaintiff.
APPEAL from circuit court of Harrison county HON. W. A. WHITE, Judge.
Suit by Mrs. Enola Patrick against the F. W. Woolworth Company, Inc., a corporation From the judgment, defendant appeals. Reversed and remanded.
Reversed and remanded.
Leathers, Wallace & Greaves, of Gulfport, for appellant.
The court erred in overruling appellant's objection to the testimony of the appellee, that her kidneys were injured because of the alleged fall.
F. W. Woolworth v. Volking, 100 So. 3.
This court has announced the rule that where the evidence is evenly balanced, and improper evidence admitted may have influenced the verdict, the case will be reversed.
Brewer v. Mullins, 52 So. 257, 97 Miss. 353; Robinson v. City of Vicksburg, 54 So. 858, 99 Miss. 439.
The Court erred in not permitting, of his own motion, appellant's counsel n on cross-examination to ask appellee the following question:
On the trial of the cause the appellant entered a general objection by agreement with appellee's counsel and the court to any testimony of the appellee or on her behalf, to establish the alleged negligence of the appellant under the declaration, or any testimony with reference to appellee's injuries, for the reason that such testimony, of necessity, overruns the insufficient allegations of the declaration and is, therefore, incompetent and inadmissible. In other words, an examination of the undisputed evidence of the appellee and her only witness, her daughter, as to the asserted negligence, shows that there is insufficient testimony to support the verdict in favor of the appellee, and for this reason the peremptory instruction should have been granted.
Newell Construction Co. v. Flint, 161 So. 743.
The verdict of the jury is against the overwhelming preponderance and weight of the evidence.
M. & O. v. Johnson, 141 So. 581; Newton v. Homochitto Lbr. Co., 138 So. 564; Columbus & G. Ry. v. Buford, 116 So. 817, 150 Miss. 832; Teche Lines v. Mason, 144 So. 383.
The jury is so excessive, in view of the injuries proven by the plaintiff by testimony of any probative value, as to show bias, prejudice and passion on the part of the jury against the defendant.
Woolworth Co. v. Volking, 100 So. 3; Beard v. Williams, 161. So. 750.
Bidwell Adam, of Gulfport, and Chalmers Potter and Henry E. Barksdale, both of Jackson, for appellee.
It is our contention that appellee, above all persons, was in a better position than anyone else to know whether or not she had been having trouble with her kidneys either before or since this accident.
In the case at bar, appellee simply stated that she did, at the present, have trouble with her kidneys, but did not have it prior to her fall in appellant's store, and with the aid of expert medical testimony, which she introduced at the beginning of the trial, it is a question for the jury as to whether or not this kidney trouble was a result of her fall down the stairs.
22 C. J., pages 527 and 528, sec. 611; Raymond v. Flint, 225 Mass. 521, 114 N.E. 811; Gorham v. Moor, 197 Mass. 522, 84 N.E. 436; Reynolds & Heitman v. Henry, 193 Iowa 164, 185 N.W. 67; Smith v. Stanley, 159 Miss. 720, 132 So. 452.
It is a well settled rule of law that if a declaration states no cause of action, the defendant's remedy is by demurrer, which must be filed before any general issue, or pleas in bar, are filed, and that if defendant waits until appellant has put on all his testimony, and then requests a directed verdict, or peremptory instruction, on the ground that the declaration states no cause of action, test he has waived his right to make this assertion after testimony has been put on.
21 R. C. L. 504, sec. 69; C. J. 387, sec. 489; Fatherree v. Griffin, 153 Miss. 570, 121 So. 119.
We most respectfully submit that there is evidence enough to prove the allegation of appellee that the steps were not only worn, split and loose, but were in an unsafe and dangerous condition and that appellee does not have to prove each and every allegation, that is. that the steps were worn, split and loose, but the proof of any one material allegation as to the theory of liability is proof enough to support the allegation.
Peat v. Chicago Railroad Co., 129 Miss. 86, 196 N.W. 355; Richard v. Poitevent & Favre. Lbr. Co., 120 So. 235; 10 R. C. L. 1010, sec. 202.
The court well knows that the preponderance of the evidence is not determined by the number of witnesses introduced, and numerical preponderance of witnesses does not necessarily constitute a preponderance of the evidence.
Burrill v. Ran, 153 Miss. 437, 121 So. 118.
The verdict is not excessive. We submit that a judgment of two thousand dollars to a woman forty-two years of age who has a severe injury to the kidneys, such as appellee sustained in this case, is a mere pittance.
Argued orally by James A. Leathers, for appellant, and by Henry E. Barksdale, for appellee.
The appellee, Mrs. Enola Patrick, was plaintiff, and brought suit in the circuit court of Harrison county against the F. W. Woolworth Company, a corporation, for personal injuries claimed to have been sustained by falling down stairs leading from the floor of the appellant company to an office situated in a balcony to which the stairway led. She alleged that it was the duty of the appellant company to keep this stairway in a reasonably safe condition so that patrons might ascend and descend same without endangering their lives or health. She also alleged that she had gone up this stairway for the purpose of securing an article which had been left in the store, and had descended about half way, when, because of the worn, split, loose, unsafe, and dangerous condition of said steps, and particularly one step, she was caused to fall forward and down said stairs a distance of six or eight feet, striking her head, body, limbs, and back upon said steps, which fall resulted in painful injuries to her head, body, limbs, female organs, and kidneys, requiring her to engage the services of a physician, and to expend, at least, five hundred dollars for medical treatment, and that she has already expended several hundred dollars for medical services.
The appellee's testimony as to the condition of the stairs is not corroborated by any witnesses, and her cause depends upon her own testimony. The fact that she fell is corroborated by a lady who was with her, and also by the appellee's daughter who was in the car outside. This daughter of the appellee testified as to the condition of her mother when she came out of the store. The appellee testified as to the condition of the stairs as follows:
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