Great Atlantic & Pac. Tea Co. v. Popkins

• Decision Date: 17 December 1953
• Docket Number: 6 Div. 317
• Citation: 69 So.2d 274,260 Ala. 97
• Parties: GREAT ATLANTIC & PACIFIC TEA CO. v. POPKINS (two cases). , 318.
• Court: Alabama Supreme Court

Page 274

69 So.2d 274

260 Ala. 97

GREAT ATLANTIC & PACIFIC TEA CO. v. POPKINS (two cases).

6 Div. 317, 318.

Supreme Court of Alabama.

Dec. 17, 1953.

Drennen & Drennen, Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue and Roy M. Johnson, Jr., Birmingham, for appellee.

PER CURIAM.

We have for review two appeals by the defendant in two cases tried jointly after they were consolidated. They are for personal injuries received by appellee Mrs. Popkins in one case, and for the loss of her companionship in the other case by her husband, appellee in it.

Mrs. Popkins is shown to have slipped and fallen as she was leaving a self-service grocery store of appellant's in Birmingham. She did not make a purchase and had no groceries to check, apparently because the meat counter was closed.

The customers on leaving passed through an aisle, by which on the left was located a stall and counter where an employee was stationed to check up the goods and receive the cash for them. There were ten such aisles, but not all of them were open for use at the time. The evidence tended to show that the first six aisles were open for use and that before the entrance of the others a chain was hooked across each of them as a warning that it was closed and not to be used. There was a tendency of the evidence to show that appellee went out through one of the aisles which had been barred by the chain, which was easily removable, and was following her husband. Both she and her husband testified they went out through aisle No. 5 which was then open.

Mrs. Popkins testified that as she turned to leave, having passed through aisle No. 5, her left foot slipped on a lettuce leaf at the edge of the checking counter on her right, and she tripped on a bag of groceries which had been left there by a member of defendant's store force. She did not remember whether the lettuce leaf was inside or outside the aisle. The evidence is not clear whether she would have tripped on the bag of groceries if she had not slipped on the lettuce leaf. The bag of groceries might have contributed to her injuries. She testified that the lettuce leaf was 'very dirty, all bruised up'. Mr. Popkins testified that they went out of aisle No. 5 and he 'saw the lettuce leaf around the corner' and 'it was dirty and ragged looking and had been skidded about fifteen or eighteen inches, it was dirty and soiled'. This was probably after his wife had fallen.

The checking counters in the store and the aisles in connection therewith extend north and south. After a customer passes through a checking aisle, he or she enters a passageway which extends east and west in the store. This passageway is between the north end of the checking counters and a rail to the north thereof. This passageway is provided by appellant for the use of customers in leaving the store. The exit door from the store is to the east of the checking counters. Therefore, in order to leave the store, a customer, after passing through the aisle by the checking counter, enters the passageway as above described, turns to the right and proceeds to the store exit. The evidence is also without conflict that checking counter No. 1 is nearest to the exit of the store and that checking counter No. 10 is farthest from the exit to the store.

There was evidence that the lettuce leaf on which Mrs. Popkins slipped and the sack of groceries over which she tripped were located on the floor at the corner of the checking counter numbered 6, to the right of aisle No. 7 which was then closed, and in or near the passageway provided by appellant for the use of customers in leaving the store.

Consideration will first be given to the third assignment of error based on a refused charge requested by appellant, which is as follows:

'If you are reasonably satisfied from all the evidence that Mrs. Gertie Popkins went through a checking counter aisle that had been closed to customers and as a proximate consequence she sustained her injuries, you cannot find against defendant.'

The complaint alleged that plaintiff's injuries 'were caused as a proximate result of the negligence of defendants in this: Defendants negligently maintained said floor at the place where plaintiff slipped and fell in an unsafe condition for the use of customers in said store'.

The plea is in short by consent. The charge assumes a duty not to go through an aisle which had been closed to customers. If Mrs. Popkins went through such an aisle...