Gulfport Winn-Dixie, Inc. v. Taylor

• Decision Date: 04 February 1963
• Docket Number: INC,No. 42529,WINN-DIXI,42529
• Citation: 246 Miss. 332,149 So.2d 485
• Parties: GULFPORT, et al. v. Mrs. Ada TAYLOR.
• Court: Mississippi Supreme Court

Page 485

149 So.2d 485

246 Miss. 332

GULFPORT WINN-DIXIE, INC., et al. v. Mrs. Ada TAYLOR.

No. 42529.

Supreme Court of Mississippi.

Feb. 4, 1963.

P. D. Greaves, Gulfport, for appellants.

J. Boyce Holleman, Clyde O. Hurlbert, Gulfport, Donald W. Cumbest, Pascagoula, for appellee.

RODGERS, Justice.

This is a damage suit for personal injuries brought by Mrs. Ada Taylor in the Circuit Court of Jackson County, Mississippi, for injuries received as the result of a fall in the store of appellant, Gulfport Winn-Dixie, Inc. The trial resulted in a jury verdict in the sum of $25,000. On motion of defendant, the judgment was reduced $5,000, and upon acceptance of the remittitur, the judgment was made final in the sum of $20,000 in favor of appellee, Mrs. Ada Taylor, against appellants, Gulfport Winn-Dixie, Inc. and Jerry Walker.

The record reveals that on January 12, 1962, the plaintiff, appellee here, went with her daughter-in-law to purchase groceries at a supermarket belonging to appellant at Pascagoula, Mississippi. They entered the store, took a cart, which the daughter-in-law, Elsie Taylor, pushed. They began shopping at the front of the store and worked their way to the back. The meat counter runs across the rear of the store on the south side. When customers make a selection of chicken or other meat, it is necessary for them to turn their back on the store and the aisle running east and west along the meat counter. Across the aisle, north of the meat counter, is the counter on which bread is displayed. The aisle between the meat and the bread counter is approximately twelve feet wide. Testimony shows that Mrs. Ada Taylor went to the meat counter with her daughter-in-law and as the daughter-in-law moved down the counter a short distance, she heard a noise, and when she turned around she saw that her mother-in-law had fallen over a dolly or cart (sometimes called a stock buggy), which was located in the aisle between the meat and bread counters. Photographs of this stock buggy are in the record, and it appears to be a long, low platform which rises about eight inches above the floor and has four wheels. The cart is three feet, three inches long, and sixteen inches wide. At one end of the cart, there are handles which rise approximately thirty-eight inches from the floor, so placed for the purpose of pushing the cart. Testimony shows that Jerry Walker, Asst. Mgr. of defendant's store, and another employee, had previously put the cart in the aisle for the purpose of moving bread to the counter to replenish the stock. A short time before finishing the process of unloading the cart, Jerry Walker went to the front of the store and called the employee who had assisted him in unloading the cart, thus leaving the stock buggy unattended in the aisle. Shortly thereafter, Mrs. Taylor fell or tripped over the buggy.

Appellee, Mrs. Ada Taylor, was approximately sixty-eight years of age at the time of the accident. It was necessary to perform surgery on her broken leg in order to insert a metal plate. She remained in the hospital for approximately three months, during which time it was necessary to keep her leg in a cast. After leaving the hospital, she was required to wear braces and use a crutch, but finally there was a solid union of the bone, and although she will probably not be able to assume a complete squatting position, she will be able to use her leg without crutches.

Testimony shows that appellee was suffering with cerebral arteriosclerosis (hardening of the blood vessels) at the time of injury, and ordinarily she would have been out of the hospital earlier, but it was deemed advisable, due to her mental condition, to keep her there longer than usual. After leaving the hospital, she went to the Old Jackson County Hospital, which is now a nursing home, and, after a period of convalescence, she is now able to walk. The doctor testified that the X-ray pictures show that the bone of her leg is in good position and alignment and that there is a new bone formation around the fracture, although the fracture line was, at the time, still visible in the pictures. The doctor was of the opinion that very good results had been obtained from the surgery, although he believed that it would be necessary for her to use a cane in the future. He stated that 'For a woman sixty-eight I think that she could probably do seventy-five to eighty percent of the required duties that a woman that age would have to do. As regards to running and jumping again, no, certainly not, but the walking and that I believe she will be all right, about seventy-five to eighty percent.'

At the conclusion of the testimony, defendant made a motion for a directed verdict which was overruled by the court.

Appellant complains of three alleged errors on appeal to this Court: First, the court erred in refusing to grant appellant a peremptory instruction requested at the conclusion of the trial. Second, the court granted an erroneous instruction. Third, the verdict of the jury is so excessive as to evince bias, passion and prejudice on the part of the jury.

In discussing the foregoing alleged errors, the first question is to determine whether or not appellee, Mrs. Ada Taylor, presented sufficient proof on which to base the verdict. Appellants argue that negligence is not established by the evidence, and points out that there were no eyewitnesses to the accident, and argue that appellee was first seen with her legs across the buggy and that this is nothing more than an inference. Moreover, it is said that the stock buggy was easily visible and that the leaving of it in the aisle did not constitute negligence. Appellants point out the general rule with reference to the duty owed by the property owner to an invitee, as shown in 38 Am.Jur., Negligence, Sec. 96, p. 754, to wit: 'Generally speaking, the fact that a person who enters upon the premises of another does so at the invitation of the owner of occupant gives him a more favored position in respect of the care to be accorded him by the owner or the occupant than that to which one who enters by the mere sufferance of the owner or occupant is entitled. The rule is that an owner or occupant of lands or buildings, who directly or impliedly invites others to enter for some purpose of interest or advantage to him, owes to such persons a duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of invitation, or at least not to lead them into a dangerous trap or expose them to an unreasonable risk * * *'. The same textwriter points out under Sec. 97, p. 757, the following: 'There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner or occupant.'

It will be observed that this textwriter also points out the following in Sec. 99, p. 759: 'Very plainly the owner or occupant owes a duty in favor of persons who come upon the premises for the purpose of transacting business with him or by his permission. This duty is illustrated most effectively by reference to the obligation of a storekeeper to customers. As hereinafter appears, a person who owns or maintains a store, shop, other public place of business is bound to use ordinary care to avoid accidents or injury to those properly entering upon his premises on business.'

The argument of appellants is to the effect that there is no liability for injuries, or dangers, which are obvious, and reasonably apparent, and cites the case of Frederich's Market, Inc....