McCarty v. Milgram Food Stores, Inc.
| Decision Date | 10 November 1952 |
| Docket Number | No. 42965,No. 1,42965,1 |
| Parties | McCARTY v. MILGRAM FOOD STORES, Inc |
| Court | Missouri Supreme Court |
Thomas E. Deacy and Ray D. Jones, Jr., for appellant.
Reed O. Gentry, Jack B. Robertson and Rogers, Field & Gentry, Kansas City, for respondent.
COIL, Commissioner.
Judgment was entered on defendant-respondent's verdict in a suit by plaintiff-appellant to recover $25,000 damages for injuries allegedly the result of defendant's negligence. Plaintiff's sole contention is that the trial court erred in giving instruction 5 at the instance of defendant.
Plaintiff's evidence tended to show that while she was shopping in defendant's store a Coca Cola sign (a cardboard ad in a light wood frame about 3' x 5') fell from the wall and struck her. She submitted her case under the res ipsa loquitur doctrine by an instruction offered by her: 'The Court instructs the jury that if you find and believe from all the evidence that on September 25, 1948 plaintiff was on the defendant's premises at 6327 Brookside Plaza, Kansas City, Missouri, shopping for groceries, if so, and that the plaintiff while upon the premises of the defendant and at the place where she was injured, if so, in the northeast section of the store, if you so find, was struck by a Coca Cola sign located in the northeast section of the store, if so, and that the defendant caused, allowed and permitted the Coca Cola sign to strike plaintiff, if so, and as a direct result thereof the plaintiff was caused to be thrown onto the floor of said store, if so, and she was injured as a result thereof, if so, and if you further find that the said Coca Cola sign was in the exclusive possession and control of the defendant, then you are instructed that such facts, if you believe them to be true, are sufficient substantial evidence upon which you may infer that the defendant was negligent, and you may so find, unless you find and believe from other evidence and from all the facts and circumstances in evidence that the fall of the Coca Cola sign was not due to the defendant's negligence, and if you so find and believe from all the evidence in the case that the defendant was negligent and that the plaintiff's injuries, if any, were directly caused by the defendant's negligence, then your verdict should be for the plaintiff.'
Instruction 5 was: 'The jury is instructed that unless the plaintiff has proved to the reasonable satisfaction of the jury, by the preponderance or greater weight of the credible evidence in the case, that the Coca Cola sign mentioned in evidence was in the exclusive possession and control of the defendant, your verdict, regardless of all other facts and circumstances in the case, must be in favor of the defendant.'
Plaintiff contends that defendant's admissions and evidence conclusively established that defendant had exclusive possession and control of the sign within the meaning of the res ipsa doctrine, and that there was no evidence to the contrary. We shall assume that this contention is true. Plaintiff argues from this premise that defendant's instruction 5 was unsupported by any evidence, without the issues, conflicted with defendant's own evidence and...
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