Hollie v. Sunflower Stores, Inc., 44214

• Decision Date: 23 January 1967
• Docket Number: No. 44214,44214
• Citation: 194 So.2d 217
• Parties: Mrs. Lucy HOLLIE v. SUNFLOWER STORES, INC.
• Court: Mississippi Supreme Court

Page 217

194 So.2d 217

Mrs. Lucy HOLLIE v. SUNFLOWER STORES, INC.

No. 44214.

Supreme Court of Mississippi.

Jan. 23, 1967.

Fountain D. Dawson, Greenville, Crisler, Crisler & Bowling, Jackson, for appellant.

Lake, Tindall, Davison & McGee, Greenville, for appellee.

JONES, Justice.

This is another 'slip and fall' case. It comes from the Circuit Court of Washington County, where a verdict for $1,000 in favor of appellant was rendered by the jury. Judgment was entered thereon. Appellee filed a motion for judgment notwithstanding the verdict, and appellant filed a motion for a new trial on the question of damages only.

From an order of the Circuit Judge sustaining appellee's motion for judgment notwithstanding the verdict and overruling appellant's motion, this appeal comes to this Court. We affirm the case.

We deem it only necessary to consider one assignment of error, to-wit: That the court erred in sustaining the motion for judgment notwithstanding the verdict. A motion for a peremptory instruction had been overruled, and a request for a peremptory instruction at the conclusion of the evidence had been refused.

When a court sustains a motion for judgment notwithstanding the verdict such action has the same effect as a directed verdict and the same rules as to the scope of our review apply. The evidence must be treated as proving every fact favorable to the plaintiff's case which is shown either directly or by reasonable inference. Agregaard v. Duncan, 252 Miss. 454, 173 So.2d 416 (1965); Moore v. WinnDixie Stores, Inc., 252 Miss. 693, 173 So.2d 603 (1965).

Appellant testified the accident happened at about 1:00 p.m. on a Monday. According to the record, the date was June 29, 1964. The appellant, who lived near Hollandale, had come to Greenville with her husband, two of her grandchildren, and a blind daughter. The purpose of the trip was for her husband to secure an unemployment check. When they arrived at Greenville, they parked their car under a shade tree somewhere in the vicinity of the Sunflower Store. Her husband left for the unemployment office. Appellant and her two granddaughters went to the Sunflower Store; the blind daughter remained in the car. Appellant desired to purchaser food for lunch to be eaten in the car. She entered appellee's front door, turned right, obtained a cart, and went down the produce counter and down the meat counter. She picked up tomatoes, a loaf of bread, some cheese, a package of meat and a box of milk. As they walked parallel to the meat counter, appellant was reminded by one of the girls that she desired some pine oil. Appellant turned left from the meat counter to look for the pine oil, made about two or three steps when she slipped and fell, throwing her arm back in an effort to catch herself. The impact broke her arm. Appellant testified that she slipped on a 'stripping' out of a banana peeling on the floor. The stripping she says was what was on the inside of a banana. Sometimes it stays on the peel and other times it sticks to the banana itself. She said that every time she peels a banana she pulls the little stripping off. She did not see the stripping prior to the fall, but after she fell and was helped to her feet by her older granddaughter, she looked and saw the stripping on the floor where her foot had slipped on it. Her heel made a black mark on the floor, which mark was a foot long. Appellant couldn't say how it that she came into the front door, turned to on it, but after she had fallen and arose, it was all 'smushed' up, just like a wad. She said the material on the floor was 'real' dark. Appellant was asked what color that part of the banana peeling was when first peeled off of a banana and she said, 'It is about the color of a banana.' She testified she had had quite a bit of experience in peeling and using bananas because she had many children and grandchildren and every time one of them came home he or she had to have banana pudding. Based on this experience, she testified, presumably as an expert, it would take a banana peeling about three or four hours after it was peeled to reach the color of the stripping. When she fell, help came and she was carried to the hospital.

On cross-examination, appellant repeated that she came into the front door, turned to the right, obtained a cart, continued to the right of the entrance door to the far wall, then turned left, went down an aisle on the far side and reached the back of the store where she turned left in front of the meat counter. The place she fell was in a wife space in front of the meat counter. When asked about a stripping from a banana, she said it was not the peeling; it was the stripping between the peel and the banana. The normal length of one would be the length of a banana. She thinks it would be about one-sixteenth of an inch wide. So far as she knows, no one picked it up. Each of her granddaughters saw it after she fell but neither picked it up. On cross-examination, appellant was asked:

'Q. Now was there anything else on the floor in the store anywhere that you saw?

A. No.

Q. You didn't see anything else-trash or anything of the kind?

A. No, sir.

Q. The floor was clean, was it not?

A. After I had fell, I didn't look no more-I just went right on out.

Q. I know, but you walked in the store all the way from the front to the back-

A. All the way from the front to the back-I didn't see anything else on the floor, huh-uh.'

The two granddaughters corroborated their grandmother as to the slipping and falling. Neither of them saw the stripping on the floor prior to the accident. The record shows nobody did.

Appellant called Mr. Max Mitchell, the manager of appellee, as an adverse witness. He had been in the grocery business practically all of his life. There were a number of employees in the store-he would say approximately twelve working on the day of the accident. There was one boy at the front, plus three stock men to take care of the floor all of the time, as a general routine.

As far as sweeping is concerned that would be done approximately three times a day. They had had a complete cleaning procedure on the Saturday night before. It took four men working three hours to do the cleaning.

Mr. Mitchell detailed the method of handling the produce, groceries and the cleaning of the floors. He stated that he passed by this place not more than thirty minutes before the accident, and probably three four, or five times before that, and saw nothing on the floor; that he continually partrolled the store. The pictures which were introduced into evidence show the store to be a large one.

The only evidence is that there was a little stripping about the length of a banana, and perhaps one-sixteenth of an inch in width on the floor. Whether it was dark or white before the lady slipped on it is not known because nobody saw it before she fell. The balance of the floor of the store was clean. The manager had been by there not more than thirty minutes before and had seen nothing. It is argued that since the stripping had turned dark and appellant testified it would take three of four hours for a peel to turn such a color, there is proof it had been there for some length of time. However, whether it turned black when she slipped on it, or whether it was black when it was on the floor before she stepped on it was not shown.

Appellant relies heavily upon the case of Moore v. Winn-Dixie Stores, Inc., supra.

It is said that case is authority for holding that negligence of the defendant is sufficiently shown here to make a jury question. The facts in the Moore case were vastly different from those here. The Moore case well states the law of such cases, but the facts shown by the plaintiff (Mrs. Moore) were, as reported on page 604 of the Southern Reporter,

'* * * She then said: 'Well, after they picked me up and put me in the chair, Mr. Rawls and my husband, after I saw what it was then, it was a banana peeling. I didn't know what it was. They put me in the chair, and the other lady who was wiping my face with a wet towel, said 'Mr. Rawls, there's some grape seed down here.' It was mashed like a hundred horses had went across it. I said 'You...