Gonzales v. Shoprite Foods, Inc.
| Decision Date | 23 August 1961 |
| Docket Number | No. 6843,6843 |
| Citation | 364 P.2d 352,1961 NMSC 123,69 N.M. 95 |
| Parties | Martha V. GONZALES, Plaintiff-Appellant, v. SHOPRITE FOODS, INC., a corporation, Defendant-Appellee. |
| Court | New Mexico Supreme Court |
Bigbee & Stephenson, Charles D. Olmsted, Santa Fe, for appellant.
Gilbert, White & Gilbert, Santa Fe, for appellee.
This action was commenced in the District Court of Santa Fe County to recover damages for permanent bodily injuries, pain and agony, medical expenses and loss of wages which the complaint alleged to have been suffered by plaintiff as the result of the alleged negligence of defendant in stacking and maintaining for display and offer of sale boxes of dry starch and bottles of liquid starch upon the shelves of defendant's self-service supermarket located on Cerrillos Road in Santa Fe. Defendant's answer (1) denied liability, and alleged (2) plaintiff's negligence was a proximate and contributing cause of said accident, and (3) that the accident complained of was unavoidable.
At the close of plaintiff's evidence, defendant moved for a directed verdict, which was denied. This motion was renewed, with additional grounds, after both sides rested, and was sustained, whereupon the jury on direction of the court found the issues in favor of defendant, judgment was so entered, and plaintiff appealed.
The record disclosed that on Saturday, February 7, 1959, while appellant was shopping in appellee's supermarket she reached to the uppermost shelf of a gondola consisting of four shelves, gradually tapering inward from bottom to top, a distance of five to five and one-half feet from the floor, grasped with her right hand the top of a small box of Faultless dry starch standing in line with similar boxes which were stacked in two layers, each box directly on top of another. As appellant started to draw the box down toward herself, several adjacent boxes of starch in the stack started falling toward her, whereupon she raised her left hand and arm, which were free, to hold the falling boxes back, but failed to stop the fall of one box which, in falling, struck a quart-sized bottle of liquid starch standing on the outside edge of the third shelf down from the top, dislodged said bottle causing it to fall from the shelf, strike appellant's foot where it broke and caused the injuries complained of.
The sole point relied upon by appellant on appeal is that the court erred in granting the appellee's motion for a directed verdict against the appellant at the close of all the evidence upon the ground and for the reason that the appellant had failed to establish a prima facie case against the appellee.
Appellant urges that 'the evidence affirmatively showed actual negligence on the part of the appellee in the manner in which the boxes were stacked and the position of the injuring bottle of starch with respect thereto, and that, at the very least, the unquestioned circumstances of appellant's injury were such that the case should have gone to the jury under an instruction that it was permitted to infer that the proximate cause of the injury to appellant was negligent conduct on the part of the appellee, its agents or employees.'
Viewing the evidence in this case in its most favorable aspect to support the plaintiff, as this court has consistently held must be done in determining the correctness of a directed verdict for the defendant, Sandoval v. Brown, 66 N.M. 235, 346 P.2d 551; Ferguson v. Hale, 66 N.M. 190, 344 P.2d 703; Addison v. Tessier, 62 N.M. 120, 305 P.2d 1067; Lindsey v. Cranfill, 61 N.M. 228, 297 P.2d 1055, the evidence is uncontradicted that the appellant had shopped at least weekly at appellee's store for several years; that she had previously purchased starch from the same location in said store and the displays of starch looked no different to her on the Saturday afternoon of the accident in question than at any previous time; that there was nothing abnormal or unusual about the manner in which the boxes and bottles of starch had been stacked or displayed at the time of the accident from the manner in which it had been done for a number of years, and was at this time customarily done, and that neither the manager of appellee's market, nor any other employee, had actual knowledge of any abnormal or unusual arrangement of the merchandise; that the manager and assistant manager constantly inspected the aisles and shelves in the market throughout the day; that there were times when properly stacked merchandise fell because mishandled by customers, and on a few occasions merchandise fell because it was improperly stacked; that no part of appellant's body touched the shelf or the merchandise prior to the collapse of the stack, except her right hand which grasped the top of the box she intended to purchase and, thereafter, her left hand as she attempted to hold back the adjacent falling boxes.
The question then which we must answer, is whether by proof of the foregoing facts, appellant made out a prima facie case of negligence against appellee which should have been submitted to the jury. We think not.
The appellant is urging upon this court the contention, not that the boxes and bottles in question were improperly stacked either by appellee, its employees or other customers, from the usual procedure used in stacking and displaying in appellee's store, but that because several boxes of starch fell when one was grasped by her, the proof of the manner in which they were customarily stacked gave rise to a rebuttable inference of negligence in the customary manner of stacking and display which should have gone to the jury. This contention is without merit. We find no evidence in this case from which an inference could be drawn that the actual manner in which the display and stacking of the starch was done was negligent, other than the theory advanced by appellant that if the display and stacking had not been negligent the adjacent boxes would not have fallen when appellant attempted to remove one box from the stack.
While ordinarily a question of negligence is one for the jury, where, upon the undisputed testimony, no facts or circumstances are shown which, in the minds of reasonable men, can be said to constitute a cause of action, based on negligence, it becomes a question of law to be determined by the court, when the sufficiency of such evidence is properly challenged. Sandoval v. Brown, supra; Caldwell v. Johnsen, 63 N.M. 179, 315 P.2d 524; Seal v. Safeway Stores, Inc., 48 N.M. 200, 147 P.2d 359; Dominguez v. Southwestern Greyhound Lines, Inc., 49 N.M. 13, 155 P.2d 138; and Boyce v. Brewington, 49 N.M. 107, 158 P.2d 124, 163 A.L.R. 583. Is it possible that upon the undisputed testimony here that, as far as anyone knew, including appellant and appellee, all was in the usual order on this Saturday afternoon--no disarrangement, no unusual...
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...other cases involving the duty of a business proprietor to his invitees. The most recent of these latter cases is Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 364 P.2d 352. The Gonzales case involved injuries sustained by a customer when a small box of dry starch fell from its stack in a s......
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