Langdon v. Safeway Stores, Inc.

• Decision Date: 30 April 1974
• Docket Number: No. 73--290,73--290
• Citation: 34 Colo.App. 29,523 P.2d 997
• Parties: Kitty LANGDON, Plaintiff-Appellant, v. SAFEWAY STORES, INC., a Maryland corporation, Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 997

523 P.2d 997

34 Colo.App. 29

Kitty LANGDON, Plaintiff-Appellant, v. SAFEWAY STORES, INC., a Maryland corporation, Defendant-Appellee.

No. 73--290.

Colorado Court of Appeals, Div. II.

April 30, 1974.

Rehearing Denied May 21, 1974.

Certiorari Granted July 15, 1974.

Balaban & Lutz, Harlan G. Balaban, Denver, for plaintiff-appellant.

Wood, Ris & Hames, P.C., Stephen E. Connor, Clayton B. Russell, Denver, for defendant-appellee.

ENOCH, Judge.

Kitty Langdon (plaintiff) sued Safeway Stores (defendant) for damages resulting from personal injuries incurred in a mishap in one of defendant's supermarkets. After trial to a jury, judgment was entered on the verdict in favor of defendant, and plaintiff appeals. We reverse.

On November 26, 1969, plaintiff had completed her shopping in a Safeway store, and requested the assistance of one of the carry-out boys in taking her groceries to her car. Several sacks of groceries were loaded into a cart which defendant's employee pushed behind Mrs. Langdon as she proceeded toward the door. According to the employee, after walking six or eight feet, plaintiff hesitated slightly beside a display of dog food. Plaintiff was, at that moment, struck from behind by the cart, which pinned her left foot to the floor. As a result of the accident, plaintiff suffered serious injuries to her leg and foot.

At the conclusion of all testimony, plaintiff moved for a directed verdict on liability, which motion was denied. The issues of both negligence and contributory negligence were submitted to the jury, over plaintiff's objection. On appeal, plaintiff assigns error to the trial court's action in refusing to direct a verdict on liability, and in submitting the issue of contributory negligence to the jury.

In reviewing a motion for a directed verdict, an appellate court must determine whether the evidence, when considered in a light most favorable to the party against whom the motion is directed, compels the conclusion that reasonable men could not differ and that no evidence has been presented which would sustain a jury's verdict against the moving party. McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778; Nettrour v. J. C. Penney Co., 146 Colo. 150, 360 P.2d 964. This rule also applies to review of the action of the trial court in submitting the issue of contributory negligence to the jury.

Applying this standard to the testimony presented on contributory negligence, we agree with plaintiff's contention that the trial court erred in instructing the jury on that issue. The factual issue involved in determining contributory negligence is whether plaintiff exercised reasonable care, under the circumstances, to protect herself from injury. Burr v. Green Bros. Sheet Metal, Inc., 159 Colo. 25, 409 P.2d 511. We must therefore determine whether the evidence presented permits the inference that plaintiff's conduct was not reasonably prudent.

The only evidence relative to plaintiff's alleged contributory negligence was testimony by witness Ulasky, the boy who was pushing the cart, who testified that as plaintiff was proceeding toward the door, she 'turned her head slightly towards the left, and make a slight hesitation, and before I could stop...