John Thompson Grocery Co. v. Phillips

• Decision Date: 10 June 1912
• Parties: JOHN THOMPSON GROCERY CO. v. PHILLIPS.
• Court: Colorado Court of Appeals

125 P. 563

22 Colo.App. 428

JOHN THOMPSON GROCERY CO. v. PHILLIPS.

Court of Appeals of Colorado

June 10, 1912

Appeal from District Court, City and County of Denver; Greeley W Whitford, Judge.

Action by Eva I. Phillips against the John Thompson Grocery Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Bicksler, Bennett, Dana & Blount, of Denver for appellant.

Redd Stidger & Benson, of Denver, for appellee.

SCOTT J.

This is an action to recover damages for injuries to the appellee alleged to have been occasioned through the negligence of the John Thompson Grocery Company, which at the time conducted a retail grocery and market in the city of Denver. The plaintiff below obtained a verdict and judgment against the appellant in the sum of $1,000, and from which this appeal is taken.

The complaint charged, in substance, that the defendant so negligently operated and conducted its market as to cause to be thrown and left upon the floor certain kinds of animal grease or meat substance, the same being tallow or some other greasy substance, leaving the same lie upon the floor at its place of business where customers were accustomed to walk about while doing their trading. That on the 27th day of November, 1907, and while trading at defendant's store and without fault upon her part, and without knowledge that the said greasy substance was upon the floor, the plaintiff walked and stepped upon the same, slipped on said substance and fell, and thereby received the injuries complained of, and which she alleged to be serious and permanent. The defendant answered specifically and generally denying the acts of negligence charged, and pleaded contributory negligence.

Aside from the physicians, whose testimony was confined to the character of the injuries and the treatment thereof, the only witness for the plaintiff was herself. From this it appears that at the time of the accident the plaintiff was a woman 46 years of age and earned her living in the principal occupation of a laundress; that she was well and strong, and had a good earning capacity; that she had been a patron of the store for seven or eight years; that she entered the store of defendant on the morning of the 27th day of November, 1907, between 7 and 8 o'clock, for the purpose of purchasing a turkey for Thanksgiving. That, entering the front of the store, she walked down the aisle between the counters where meat products were kept, and approached a clerk standing where turkeys were exposed for sale. That she stopped and was about to make inquiry of the clerk having in charge what she wanted to purchase, when she slipped and fell. That both her feet slipped from under her; that she was then assisted to her feet and walked toward the rear of the store where a box was provided, and upon which she sat down, and where she remained for from 20 to 30 minutes, when she walked over to the city hall and was attended by the city surgeon. While sitting on the box, the plaintiff says she found and removed from her foot a piece of fatty substance about as wide as her two fingers and about an inch and a half long. She does not know exactly what this substance was, but that it was greasy, looked like tallow, and might have been tallow; that she found it on her foot between the ball of the foot and the instep, and that she threw it up against the wall and under the telephone.

The plaintiff further says that she did not call the attention of any person to the existence of the fatty substance, and does not know that it was seen by any one aside from herself. She was assisted in one way and another until she left the store by three different employés, one of them binding a piece of meat on the injured arm. The plaintiff says that the storeroom was well lighted, that her eyesight was good, and that she was looking where she walked and did not see the substance on the floor which she afterward found on her shoe.

Three physicians testify that the injury was a Colle's fracture of the arm. The injury was not healed at the time of the trial in May, 1909, and, in the opinion of each of the physicians, it was permanent. An operation was had in April after the injury, so that, if there is liability upon the part of the defendant, the verdict rendered by the jury would appear to be in no sense excessive.

At the close of plaintiff's testimony the defendant moved for a nonsuit, which was denied by the court. Again the defendant, at the close of the trial, moved the court for a directed verdict upon grounds substantially as offered in the motion for a nonsuit as follows: "First. The evidence on the trial fails to show in any manner any negligence on the part of the defendant contributing to the injury received by the plaintiff. Second. There is no evidence whatever that the defendant caused to be thrown upon the floor of its meat market and left upon such floor any tallow, animal substance, or other greasy substance as charged in the complaint. Third. The evidence fails to show any failure on the part of the defendant to exercise ordinary and reasonable care under the circumstances as required by law. Fourth. The evidence affirmatively shows that the defendant did exercise ordinary and reasonable care to keep its floors in a suitable condition. Fifth. There is no evidence whatever from which any presumption of negligence on the part of the defendant could be inferred. Sixth. The evidence shows that the plaintiff was negligent herself, and by the exercise of ordinary care could have seen the tallow which she claims was upon the floor, if it had been there. Seventh. The evidence fails to show that plaintiff's present condition and injuries are a direct, proximate, and immediate result of defendant's negligence. Eighth. Even if it should appear from the evidence that there was grease upon the floor which caused plaintiff's fall, the evidence fails to show that the defendant did not exercise reasonable and ordinary care to keep the floor in good condition, and the mere fact that the grease was present, if it was, is not of itself a fact of negligence sufficient to charge the defendant in this action." This motion was likewise overruled, and the ruling of the court upon these motions, together with certain instructions tendered by defendant and refused by the court, are assigned as error.

Of the rulings of the court upon the two motions, it will be necessary to consider only that denying the motion of defendant for a directed verdict, for, in proceeding with the introduction of its testimony after the denial of its motion for a nonsuit, the defendant assumed the risk of any evidence beneficial to the plaintiff from its own witnesses.

The defendant offered the testimony of three witnesses, two in its employ both at the time of the trial and at the time of the accident, and one in the employ of the defendant at the time of the accident, but not at the time of the trial. These all agree upon certain points as follows: That the defendant caused its floors to be scrubbed once a week; that it caused its floors to be swept from four to five times each day, and always once in the morning, between the time of opening and 7:30 o'clock; that they assisted the plaintiff at the time of the accident; that the floor was swept that morning, and before the accident; that they saw no such or any grease or fatty substance, or any such substance on the floor, or on plaintiff's foot; that plaintiff did not suggest that she had found any such substance; that immediately after the accident each examined the floor where plaintiff fell and could find no grease or evidence that there had been such on the floor, or any indication that such had been mashed as if by crushing with the foot; that no such fatty or greasy substance as described by plaintiff was kept on either of the counters between which plaintiff fell.

The witness Albin says that the plaintiff came into the store between 7 and 8 o'clock in the morning; that she came toward him, he was looking at her all the time, expecting to take her order; that she was walking as if in a hurry and, when opposite his block, she turned suddenly as if she was going into the grocery department and fell; that when he was assisting her to arise she said, "I guess I was in too big a hurry."

The witness Kroeger testifies that he was not at the time of the trial in the employ of ...