Kelly v. Walgreen Drug Stores

• Decision Date: 26 March 1943
• Citation: 170 S.W.2d 34,293 Ky. 691
• Parties: KELLY v. WALGREEN DRUG STORES.
• Court: Kentucky Court of Appeals

170 S.W.2d 34

293 Ky. 691

KELLY v. WALGREEN DRUG STORES.

Court of Appeals of Kentucky

March 26, 1943

Appeal from Circuit Court, Common Pleas Branch, Second Division Jefferson County; B. H. Farnsley, Judge.

Action by Ada Kelly against Walgreen Drug Stores for injuries sustained by plaintiff from a fall on a sidewalk in front of defendant's drug store. From a judgment for defendant upon a directed verdict, plaintiff appeals.

Affirmed.

Woodward Dawson & Hobson, of Louisville, for appellant.

E. J Hogan and Edwin O. Davis, both of Louisville, for appellee.

THOMAS Justice.

Between 6:00 and 6:30 o'clock P. M., on January 15, 1941, appellant and plaintiff below, Ada Kelly, while walking on the sidewalk in front of the drug store of appellee and defendant below, Walgreen Drug Stores, at 1591 Bardstown Road in Louisville, Kentucky, fell on the sidewalk, whereby she sustained serious injuries. On December 31 of the same year (lacking only sixteen days of being one year from the date of her accident) she filed this action against defendant to recover damages she sustained, which she placed at $2,980. In her petition she alleged that defendant, its agents or servants "placed or permitted its paste or mucilage" to be upon the sidewalk in front of its store which rendered it dangerous and unsafe, and by reason thereof she slipped and fell, by which she sustained her injuries. The court overruled a demurrer filed to the petition, and in defendant's answer the material allegations thereof were denied, followed by a plea of contributory negligence, which was denied by a reply--thus forming the issues. At the close of plaintiff's proof the court sustained defendant's motion for a directed verdict in its favor, which was done by the jury and the petition was dismissed, to reverse which this appeal is prosecuted.

It will be perceived that plaintiff's petition specifically alleged that the dangerous substance on the walk was paste or mucilage, and that its presence thereon was the fault of defendant. The question presented by the appeal is purely a factual one, i. e., (a) Whether or not any paste or mucilage was upon the walk at the time plaintiff fell, and if so (b) whether defendant was responsible for its presence at that place and time?

Considering first the determination of fact (a) it should be stated that no witness introduced by plaintiff testified to having examined the spot on the sidewalk where she fell and discovered thereon either of the substances which she alleged caused her to fall; but there was circumstantial proof introduced in an effort to show that only one (paste) of the charged substances was on the walk at that point. That testimony was, that plaintiff was wearing a cloak which she testified was clean, with no foreign substances of any kind on it. The cloak was removed from her person immediately following the accident. She was first carried into the drug store and from thence to her home, where she says she contracted pneumonia, and later was carried to the hospital. In February following her accident, and after she recovered from the attack of pneumonia, she discovered some sort of spot on her cloak on its lower left side upon which she fell, and which, it is insisted, was produced by one or the other of the dangerous substances alleged in the petition to have been on the walk at the time she fell, and which plaintiff testified was not there before she sustained her injuries.

In September 1941, eight months after the accident, plaintiff's witness, Ben Kitten, a barber--whose place of business was about half a block from defendant's drug store--procured from the latter some paste which was delivered to him by the porter of the drug store, Robert Baker. That procurement was at the request of an attorney of the Louisville bar by the name of Head, who seems to have then been engaged in preparing this action on behalf of plaintiff. The paste so obtained by the witness, Kitten, was delivered to Head and he in turn procured another witness for plaintiff, Frank Doetzger, to spread some of that paste on a side walk in the business portion of the city and to rub one of the sleeves of plaintiff's cloak in it, which made a similar spot thereon to the one first above described. The testimony, as so related, is all there is in the record to prove that either of the alleged slick substances was on the walk where plaintiff fell. No peculiar or distinctive appearance or condition was shown by any testimony that the spots on the cloak could be produced only by paste or mucilage so as to exclude any hypothesis that they might have been produced by some other substance. Neither was there any testimony to show that the cloak between the time of the accident and when plaintiff discovered the spot thereon did not become soiled as plaintiff discovered it about one month after her accident. There was also no testimony to show that the mucilage obtained by the witness Kitten, months after the accident, was of the same kind and quality used by defendant (as hereinafter described) at the time of the accident. It is, therefore, our conclusion that fact (a) supra, depends so much on surmise, stipulation and suspicion as to rob it of that degree of probative force necessary to support the principal fact alleged in the petition--i.e., that the paste or mucilage which plaintiff alleged caused her to fall was on the walk at that time, and which conclusion is supported by the fact that no witness testified to having seen the substance on the walk at the time; and which brings us to a consideration of fact (b).

The testimony of but one witness is necessary to be considered in the determination of fact (b). That witness is Robert Baker who was introduced by plaintiff. He was the porter at defendant's drug store and had been serving as such for quite a number of years. A part of his duties was the pasting of advertisements on the front windows of the drug store, which he performed...