J. C. Penney Co. v. Evans

• Decision Date: 01 April 1935
• Docket Number: 31554
• Court: Mississippi Supreme Court
• Parties: J. C. PENNEY CO. v. EVANS

160 So. 779

172 Miss. 900

J. C. PENNEY CO. v. EVANS

No. 31554

Supreme Court of Mississippi

April 1, 1935

Division A

Suggestion Of Error Overruled, April 15, 1935.

APPEAL from circuit court of Harrison county HON. W. A. WHITE Judge.

Action by Mrs. Lilie Evans against J. C. Penney Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Carl Marshall, of Gulfport, for appellant.

The evidence was insufficient to warrant a finding that the particle that entered the plaintiff's left eye emanated from the mechanism of the hand trolley.

While it is true that the jury is the judge of the weight of evidence, the familiar maxim does not embrace within its scope the right to found verdicts upon speculation and conjecture.

Fatheree et al. v. Griffin, 153 Miss. 570, 121 So. 119.

Assuming that the evidence, however attenuated and remote in its probative value, was sufficient to sustain a finding that the minute particle that entered the plaintiff's left eye did emanate from some unknown part of the mechanism of the hand trolley, it was wholly insufficient to establish the negligence of the defendant proximately causing the occurrence that is essential to liability.

45 C. J. 837, sec. 245; Kaufman Dept. Stores v. Cranston, 258 F. 917, 169, C. C. A. 637; Woolworth & Co. v. Conboy, 170 F. 934; S. H. Kress & Co. v. Markline, 117 Miss. 37, 77 So. 858; Thompson v. I. C. R. R. Co., 105 Miss. 636, 63 So. 185, 47 L.R.A. (N.S.) 1101; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Miss. Power & Light Co. v. Sumner Gin Co., 127 So. 284.

The plaintiff's case cannot be aided here by a presumption of negligence.

45. R. C. L., Negligence, page 57, sec. 53; Von Scoter v. Megginson, 144 Miss. 510, 110 So. 247; Wheeler v. Laurel Bottling Works, 111 Miss. 442, 71 So. 743, L.R.A. 1916E 1074; Woodland Gin Co. v. Moore, 103 Miss. 447, 60 So. 574; 20 R. C. L., Negligence, page 187, sec. 156; A. & V. R. R. Co. v. Groome, 97 Miss. 201, 52 So. 703.

The amount of damages awarded the plaintiff was grossly excessive.

Bidwell Adam, of Gulfport, and Chalmers Potter, of Jackson, for appellee.

We most respectfully submit that in this case the doctrine of res ipsa loquitur applies to the case at bar. The evidence of the defendant as to the inspection of the apparatus was wholly insufficient.

Feeney v. New York Waist House, 105 Conn. 647, 136 A. 554, 50 A.L.R. 1539; Mullen v. St. John, 57 N.Y. 567, 15 Am. Rep. 530; Howard v. Redden, 7 A.L.R. 204; Stair v. Kane, 156 F. 100; Cincinnati Traction Co. v. Holzenkamp, 78 N.E. 529; Lynch v. Ley & Co., 197 N.Y.S. 360; Waskaw v. Reisinger Co., 193 N.W. 357, 180 Wis. 537; Denhman v. Danials Co., 146 Ill.App. 214; Talge Mahogany Co. case, 103 N.E. 815, 55 Ind.App. 303; Higgins v. Rupert, 108 N.Y.S. 919, 124 A.D. 530; Anderson v. McCarty Dry Goods Co., 95 P. 325, 16 L.R.A. (N.S.) 931; Schmidt v. Stern, 196 N.Y.S. 727.

The inspection must be sufficiently frequent to insure a reasonably safe condition, and thorough enough to determine the condition.

45 C. J. 873; Fulton Ice Co. v. Pece, 116 S.E. 57; Gray v. Boston R. R. Co., 159 N.E. 441.

The verdict is not excessive.

Peters v. Hoover Co., 281 S.W. 71; Mustrom v. Shenango Furnis Co., 105 Minn. 140, 117 N.W. 480; 273 S.W. 186; 166 P. 1054.

Argued orally by Carl Marshall, for appellant, and by Chalmers Potter, for appellee.

OPINION

Smith, C. J.

The appellee obtained a judgment for one thousand five hundred dollars against the appellant for an injury alleged to have been sustained by her because of the appellant's negligence.

The appellant's complaints are: First, that the court below refused its request for a directed verdict; second, the case was submitted to the jury without any instructions for the appellant, advising the jury as to the substantive law of the case; and, third, that the verdict is excessive.

The evidence discloses that the appellant is engaged in the general retail mercantile business, and as a part of its equipment therefor maintains and operates a carrier system from its cashier's desk on the second floor of the building in which its business is conducted, to various parts of the first floor thereof, for the purpose of transmitting to the cashier cash received by its clerks for articles purchased. These carriers consist of copper baskets or barrels running on copper wheels over copper cables. While in the appellant's shop, for the purpose of purchasing articles there offered for sale, the appellee was standing a few feet from a clerk who was waiting on another customer, which clerk started one of these carriers to the cashier's desk. It passed within a few feet of the appellee's head, and as it passed she felt several small hard substances strike her face, one of which entered her eye, and proved to be a small piece of metal. This metal was extracted from her eye by a competent surgeon, but left it in a damaged condition, from which she still suffers pain, and which has materially reduced the sight of the injured eye.

According to the evidence of the appellant, these carriers were manufactured by a reputable manufacturer, were of the standard type in general use, had been used by it for several years, and were inspected by its manager about every two weeks without discovering any defects therein.

1. The appellant's request for a directed verdict: The appellant owed its business visitors the duty of exercising reasonable care to prevent injury to them from defects in its premises and appliances. 2 Restatement, Torts, section 343; 2 Cooley on Torts (3 Ed.), page 1258; Allen v. Y. & M. V. R. Co., 111 Miss. 267, 71 So. 386; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Ness Creameries v. Barthes, 170 Miss. 865, 155 So. 222. Specifically, the appellant was charged with the duty of exercising reasonable care to install only such a carrier as would not create, when operated, an unreasonable risk to its business visitors, and also to exercise the same care thereafter to keep it in such condition. In order to discharge the latter duty it should have inspected the carrier at reasonable intervals, with reasonably sufficient thoroughness, for the discovery of ordinarily discoverable defects therein which would create a realizable danger to persons near the carrier when it was being operated. 45 C. J. 873; Anderson v. McCarthy D. G. Co., 49 Wash. 398, 95 P. 325, 16 L.R.A. (N.S.) 931, 126 Am. St. Rep. 870; Feeney v. N. Y. Waist House, 105 Conn. 647, 136 A. 554, 50 A.L.R. 1539, and authorities supra.

The appellee did not prove any specific act of negligence on the part of the appellant, but rests her case on the doctrine of res ipsa loquitur. This doctrine, which should be cautiously applied and is of limited extent, is that when an injury is caused by an apparatus in the control of the defendant of such character that would not ordinarily have been inflicted had the defendant exercised due care in the construction inspection, and use of the apparatus, the jury may infer therefrom, in the absence...