Kroger Co. v. Ward
| Decision Date | 04 March 1971 |
| Docket Number | No. 370A36,No. 1,370A36,1 |
| Parties | The KROGER COMPANY, Inc., Appellant, v. Bertha Mae WARD, Appellee. The KROGER COMPANY, Inc., Appellant, v. Ellis WARD, Appellee |
| Court | Indiana Appellate Court |
Harold Abrahamson, Hammond, for appellant.
Michael F. Yudt, Gary, for appellees.
Bertha Mae Ward and Ellis Ward commenced separate actions against the Kroger Company, Inc., arising out of an incident which occurred on December 30, 1965, in a Kroger Store at the Village Shopping Center in Gary, Indiana, wherein plaintiff-appellee Bertha Mae Ward fell on a wet spot on the floor of the Kroger Store and sustained an injury to her left knee. The action commenced by plaintiff-appellee Ellis Ward, was for recovery of medical expenses and loss of services. By agreement of the parties, the causes were consolidated for trial and tried in the Newton Circuit Court without the intervention of a jury. A decision and judgment in favor of the appellee, Bertha Ward, in the sum of Five Thousand Dollars ($5000), and in favor of the appellee, Ellis Ward, in the sum of Seven Thousand Dollars ($7000), was rendered by the trial court.
A timely motion for a new trial was filed complaining of error as follows:
1. The decision is not sustained by sufficient evidence;
2. The decision is contrary to law; and
3. The damages awarded are excessive.
The motion was overruled thereby giving rise to this appeal.
The evidence in the record before us indicates that the weather on the day of the accident was very inclement with snow falling. The parking lot of the shopping center was covered with snow and slush. The plaintiff Bertha Ward entered the Kroger Store in the late afternoon at the only customer entrance through two automatic doors upon which warning signs had been posted by the manager, advising those entering the premises to watch their step. After entering the store a distance of two or three steps the plaintiff fell in a puddle of slushy water, which she saw, that had accumulated on the floor. The water and the floor were about the same color. The size of the pool of water was described by one witness by means of swinging her arm in an arc indicating the pool was about that size. The evidence further indicated that the manager was aware that this water was accumulating as customers came into the store, and put up the signs as well as telling an employee to provide what was termed as 'constant maintenance' in removing the water. The evidence did fail to show that that employee was present at the time of the fall. The manager testified that there was a thawing agent being used in the parking lot which had created an even more slippery condition for customers entering the store if they were wearing rubber-soled shoes, as the plaintiff was in this instance. The evidence further indicates that the plaintiff had to use two crutches for a period of more than one year, then used one crutch and one cane for an even longer period of time, and at the time of the trial was still using a cane. The medical evidence further indicated that there was a pre- existing arthritic condition in the plaintiff's injured knee. There was medical testimony concerning torn cartileges, loose bodies in the knee, and a hairline fracture of the upper tibia.
The plaintiff-appellee Bertha Ward's household duties subsequent to the time of the injury were limited to occasional laundry and ironing. The plaintiff Ellis Ward testified to a loss of consortium during the period in question.
The appellant assigns only one error as a basis for this appeal, 'The court erred in denying defendant's alternative motion to vacate its decision and judgment and enter judgment in favor of the defendant or in the alternative to grant a new trial.'
The court, on appeal, will not weigh the evidence. This rule of law is so elementary as to not require a citation of authority. In the instant case the trial court had the opportunity to see and hear the witnesses, consider the evidence in its entirety, and render a decision based upon the law and facts accordingly. Where the facts relative to negligence and contributory negligence are disputed, or where more than one inference can be drawn from the facts, the question of negligence or contributory negligence is one for the trier of fact, whether it be tried before a jury or a judge. Robertson Bros. Dept. Store v. Stanley (1950), 228 Ind. 372, at pp. 378, 379; 90 N.E.2d 809, at p. 811 and authorities cited therein. The evidence relative to negligence and contributory negligence was conflicting and was resolved by the trial court in favor of the appellee. The evidence and the inferences which legitimately flow therefrom are sufficient to establish negligence on the part of the appellant.
The defendant's duty was the exercise of ordinary care to keep the store in reasonably safe condition and in a manner which would not cause injury to one lawfully entering for the purpose of making purchases, and this duty is active and continuous. Huttinger v. G. C. Murphy Company (1961),131 Ind.App. 642; 172 N.E.2d 74. Hickey, etc. v. Shoemaker (1961) 132 Ind.App. 136, 167 N.E.2d 487.
The appellant relies heavily upon the doctrine that the storekeeper is not liable for objects on the floor placed by third persons, such as the slush and water being tracked in by the customers in this case, and this is true as far as it goes. However, if that object remains on the floor for such a length of time and under such conditions that it would have been discovered before the injury by the exercise of ordinary care, then liability would exist on the part of the storekeeper. J. C. Penney, Inc. v. Kellermeyer (1939), 107 Ind.App. 253; 19 N.E.2d 882.
In affirming the granting of a motion for a directed verdict for the storekeeper in Wade v. Three Sisters, Inc. (1962), 134...
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