Fleming v. Allied Supermarkets, Inc., Civ. No. 64-147.

• Decision Date: 15 December 1964
• Docket Number: Civ. No. 64-147.
• Court: U.S. District Court — Western District of Oklahoma
• Parties: Charlotte Blanche FLEMING, Plaintiff, v. ALLIED SUPERMARKETS, INC., Defendant.

236 F. Supp. 306

Charlotte Blanche FLEMING, Plaintiff, v. ALLIED SUPERMARKETS, INC., Defendant.

Civ. No. 64-147.

United States District Court W. D. Oklahoma.

December 15, 1964.

J. Rex Spurr, Shawnee, Okl., for plaintiff.

Ben L. Burdick, Oklahoma City, Okl., for defendant.

DAUGHERTY, District Judge.

On May 4, 1962, the plaintiff, Charlotte Blanche Fleming, while a business invitee in the store of the defendant in Shawnee, Oklahoma, was struck by a grocery pushcart and knocked to the floor. The cart was being pushed by a five-year-old child. His two-year-old sister was riding in the basket portion of the push-cart. It appears that the five-year-old child was running with the cart in an aisle of the store and turned a corner, whereupon the cart struck the above-named plaintiff in the stomach, knocking her to the floor.

The plaintiff, Charlotte Blanche Fleming, brings suit for personal injuries and pain and suffering sustained by reason of the above incident, and the plaintiff, Garland Fleming, the husband of Charlotte Blanche Fleming, sues for medical expenses and loss of services and consortium of his wife, all by reason of the above incident.

The parents of the five-year-old child with the push-cart have paid the plaintiffs the sum of $796.35 under a covenant not to sue as a result of this incident.

The plaintiff, Charlotte Blanche Fleming, a practical nurse and housewife, testified that she did not see the children and the push-cart which struck her at any time while she was in the store until immediately before she was struck. She testified about her physical condition and work before and after the accident and the medical attention she received as a result thereof.

The plaintiff, Garland Fleming, testified that he was with his wife in the store at the time of this incident; that very shortly after entering the store he observed at a distance of some 20 to 30 steps away the said five-year-old child who then had a grocery push-cart in which the two-year-old girl was riding; that the boy was pushing the grocery cart back and forth in the aisles of the store and was running or trotting with the same; that he was doing so at that time in the presence and view of an employee of the store; that the boy passed other employees of the store with the grocery push-cart in a similar fashion; that this plaintiff and his wife were in the store approximately 30 minutes before the accident and that he observed the boy with the push-cart with the girl in the same on several other occasions before his wife was struck; he also testified about his wife's inability to do her household work and consort with him as a wife.

A customer in the store who previously worked for the store testified to seeing the accident; that the boy was running fast with the push-cart in an aisle of the store, turned a corner and ran the cart into the plaintiff, Charlotte Blanche Fleming; that the plaintiff, Charlotte Blanche Fleming, was struck in the stomach by the cart and fell to the floor; that she had not seen the children with the push-cart in the store prior to just before the accident.

The mother of the two children testified that she did not see the accident; that she had been in the store about 15 minutes before the accident; that she saw her two children with a grocery push-cart with her boy pushing the same and her little girl riding in the cart; that she did not at any time observe the boy running with the cart but only pushing the same with his sister therein.

The assistant store manager testified that prior to the accident and in the north end of the store he saw a child pushing a grocery cart with another child in it but that the boy pushing the cart was not running, but that he did tell the boy to slow down; that the boy pushing the cart could not see directly ahead because of his size and the location of his passenger in the basket of the cart and that he was going from side to side with the cart; that he did not see the accident which occurred after he told the boy to slow down.

Another customer in the store testified that he was in the store about 15 minutes; that after he was in the store about one minute he saw a boy with a grocery push-cart with a small child riding in the cart; that he thinks the boy was running with the cart but he was not sure; that two or three minutes before he left the store he saw the boy running with the push-cart and heard some hollering and saw the plaintiff, Charlotte Blanche Fleming, fall to the floor.

The plaintiffs claim herein that the defendant was guilty of negligence toward them in allowing a dangerous condition, in the form of a small child running through the store aisles and passageways pushing a grocery cart, to exist on their premises to which the plaintiffs were business invitees and did nothing to remove or prohibit the dangerous condition or warn the plaintiffs thereof; that in effect the defendant failed to exercise ordinary care to keep and maintain its premises in a reasonably safe condition for the use of the plaintiffs as their business invitees.

The defendant by its answer admits the accident but denies that it was guilty of any negligence; alleges the plaintiff, Charlotte Blanche Fleming, was guilty of negligence causing or contributing to the cause of her injuries; alleges that the accident was...