Milliken v. Weybosset Pure Food Mkt. .

• Decision Date: 20 November 1945
• Docket Number: Nos. 8724, 8725.,s. 8724, 8725.
• Parties: MILLIKEN v. WEYBOSSET PURE FOOD MARKET (two cases).
• Court: Rhode Island Supreme Court

44 A.2d 723

MILLIKEN

v.WEYBOSSET PURE FOOD MARKET (two cases).

Nos. 8724, 8725.

Supreme Court of Rhode Island.

Nov. 20, 1945.

Exceptions from Superior Court, Providence and Bristol Counties; G. Frederick Frost, Judge.

Separate actions of trespass on the case for negligence by William Milliken and by his son, William Milliken, Jr., p.a., against Weybosset Pure Food Market for injuries suffered by infant plaintiff, and for damages to plaintiff father for expense incurred as result of such injuries. A verdict for plaintiff in each case was rendered and defendant's motion for a new trial in each case was denied on condition of remittitur. No remittitur was filed in either case, and plaintiffs and defendant bring exceptions.

Exceptions overruled and each case remitted to superior court for new trial.

Sherwood & Clifford, Raymond E. Jordan, and Sidney Clifford, all of Providence, for plaintiffs.

Frederick W. O'Connell, Francis X. LaFrance, and Swan, Keeney & Smith, all of Providence, for defendant.

CAPOTOSTO, Justice.

These are actions of trespass on the case for negligence arising out of an accident suffered by William Milliken, Jr., two years and four months of age, at about 11:30 a.m. on November 20, 1942, in the grocery and market of the defendant on Weybosset street in the city of Providence. The infant plaintiff fell through an open trap door in the floor of the store and suffered the injuries for which damages are claimed. One case is brought on behalf of the infant plaintiff for his injuries, and the other by his father for expenses incurred as a result of such injuries.

In the superior court the two cases were tried together to a jury, which returned a verdict of $8,000 for the son and $1,400 for the father. Defendant's motion for a new trial in the son's case was denied if, within five days, he remitted all of his verdict in excess of $2,500, but otherwise was granted; and in the other case the motion was denied, if, within the same time, the father remitted all of his verdict in excess of $1,200, but otherwise was granted. No remittitur was filed in either case.

The cases are before us on exceptions by the respective plaintiffs therein and by the defendant. In each case the plaintiff relies upon his exception to the decision granting the defendant's motion for a new trial if the remittitur specified in such decision was not filed. In each case the defendant relies upon its exceptions to the denial of its motion for a directed verdict, to rulings on the admission of evidence during the trial, to the refusal of requests to charge, and to portions of the charge. Since recovery in the father's case depends on the defendant's liability for the son's injuries, we shall first direct our attention solely to the son's case.

The negligence relied upon in the declaration of the infant plaintiff, hereinafter referred to merely as the plaintiff, is that the defendant failed to exercise due and reasonable care in maintaining the floor of its premises in that ‘a certain trap door on said premises and close to the aisles ordinarily used by patrons was left open’ as a result whereof the plaintiff fell through said trap door and was severely injured. (Italics ours.)

It appears in evidence that on the day in question the plaintiff was with his mother, who entered the defendant's premises for the purpose of purchasing certain foods; that, after making some purchases, she, holding the child by the hand, then went to the cashier's cage near the center of the store to pay her bill; that, in order to get the money from her billfold, she released her hold on his hand and almost immediately thereafter heard the cry of the child, who had fallen through the open trap door.

As one enters defendant's store at its front and goes from the front toward the rear, there are two main aisles, seven feet wide, with a fruit counter between the aisles and with the cashier' cage, where plaintiff's mother was at the time of his fall, to the rear of that counter. Proceeding along the left-hand aisle towards the rear of the store, the fruit counter is on the right and a long delicatessen counter is on the left. Five feet beyond the end of the last-mentioned counter and approximately in line with it is the dairy counter. From this opening between these two counters the uncovered floor of the store extends for a distance of a little over eight feet from the left side of the main aisle to the left wall of the store, where, as is suggested by the plaintiff, merchandise was on display at the time of the accident. Whether the entrance to this area, which we will hereinafter call the cross aisle for convenience, was open or substantially blocked at that time is the subject of conflicting evidence. The testimony for the plaintiff on this point is that there was nothing to prevent any one from entering that cross aisle, while the defendant's testimony is to the effect that entrance thereto was substantially blocked by a movable display stand, which it was its custom, both before and after the accident, to set up at that place until a cashier's cage was placed there.

The trap door, from which stairs lead to the cellar, is attached to the floor of the store by hinges and is located directly in back of the end of the delicatessen counter near the left side of the cross aisle as one enters it from the main aisle. There was no gate, guard rail or other obstruction at this point. The plaintiff's mother and another of his witnesses testified that the opening in the floor for the trap door extended beyond the end of the delicatessen counter and into the cross aisle by about four inches. On the other hand, three witnesses for the defendant testified that the trap door did not extend into the cross aisle; two of them testified that such door was in back of the delicatessen counter and was six to eight inches away from the side aisle; while another, a civil engineer, who made a plan of the place of the accident, which plan was admitted in evidence without objection, testified that the side of the opening in question was in back of the delicatessen counter and about four inches away from the side of the cross aisle.

The trap door is 32 inches long by 22 inches wide. When raised, it rests against the shelving behind the delicatessen counter, which shelving extends into the cross aisle some two feet beyond the end of that counter. The plan in evidence also shows that a sign 10 x 14 inches, with the words: ‘Danger Watch Out for Cellar Stairs', is affixed to the above-mentioned extension of the shelving and faces one who enters the cross aisle.

The defendant urges two contentions in support of its exception 6, which relates to the denial of its motion for a directed verdict: first, that the plaintiff was a mere licensee at the time of the accident and that, therefore, ‘since the trap door was not in any part of the premises to which the public was invited, it owed no duty to the minor plaintiff nor to any customer in the store’; and, second, that ‘if there were an invitation to the minor plaintiff, it was a qualified and conditional one. That is, the defendant could assume that a child of such an age would be accompanied and taken care of by a responsible adult.’ These contentions are opposed by the plaintiff, who contends that in the circumstances of this case the defendant owed him the duty that is owed to an invitee and that the extent of the invitation and the breach of the duty were questions of fact for the jury.

Whether a person is a licensee...