Moore v. Winn-Dixie Stores, Inc.
Decision Date | 05 April 1965 |
Docket Number | No. 43458,WINN-DIXIE,43458 |
Parties | Mrs. Lucille MOORE v.STORES, INC. and Lewis B. Rawis. |
Court | Mississippi Supreme Court |
Walter L. Nixon, Jr., Biloxi, for appellant.
P. D. Greaves, Gulfport, for appellees.
This is an appeal by the plaintiff in the Circuit Court of Harrison County, Mississippi, from an order and judgment in the trial court sustaining the motion of appellees for a judgment notwithstanding the verdict of the jury in favor of appellant in the sum of $17,500. The suit involves a claim of appellant, Mrs. Lucille Moore, against Winn-Dixie Stores, Inc. and Lewis B. Rawls, Manager of the Biloxi Stores, for damages because of a personal injury sustained when she stepped on a banana peel in the aisle of the store while she was a customer.
The accident occurred on February 20, 1963, and although there is some dispute as to the exact time the accident occurred, the testimony of appellant indicates she entered appellee's store about 10 A.M. Mr. John Moore, her husband, was with her. They proceeded to make a selection of purchases, going from one aisle to another, and they became separated. Mrs. Moore, the mother of seven children, went to a place in the store where baby food was kept for the purpose of making a selection. She reached for a can of food and slipped on a banana peel which was on the floor. She struck her side on a shelf as she went down and fell flat on her back. All of the canned baby food fell on top of her. She said: 'Well, my feet went out from under me and as I fell my right side hit the shelf.' She then said: She testified at another time describing the area in the aisle where she fell: Both Mr. and Mrs. Moore testified that the banana peel was black in color, and Mr. Moore testified: 'Yes, there was a little place around there that looked like it was kinda black looking and soiled up, you know.' He also said: He continued by testifying: 'It was mashed up there, where she slipped on it.'
When plaintiff, appellant here, had concluded the introduction of evidence and had rested her case, the defendants, appellees here, made a motion ore tenus asking the court for a directed verdict in their favor, based upon the assertion that plaintiff had not shown that defendants had knowledge of the dangerous condition of the floor, or had put the banana peel upon the floor. The court overruled the motion upon the ground that the evidence established a question of fact for the determination of the jury. The appellees then offered evidence in defense of the action.
The witnesses for appellees admitted the appellant fell and there was a banana peel at the place where she fell, but it is contended by appellees that the peel was not put there by an employee of Winn-Dixie Stores, and that the store was inspected by Mr. Rawls after it had been cleaned by a janitor at eight o'clock. Later Mr. Rawls and his supervisor, Mr. George Lamb, went over the store together. Both of these men testified there was no banana peel in the area where Mrs. Moore fell at that time. Both witnesses saw the banana peel after the accident, and Mr. Rawls testified: 'I assume the lady slipped on the banana peel, but the banana peel stayed as it was.' He testified he knew exactly how the banana peel got there, and said: He was then interrupted with the question: He answered: 'The banana peel, no sir.'
Dr. Tisdale testified that the natural deformity of appellant's backbone was severely damaged and that she suffered considerable pain and was required to take codeine and aspirin for relief. He also said her condition required her to wear a back brace.
The jury, after having heard the evidence, the argument of attorneys and receiving instructions of the court, returned a verdict in favor of appellant. Thereafter, the court entered the judgment abovementioned. Thereupon, appellees promptly filed a motion for a judgment notwithstanding the verdict, based upon the grounds previously asserted. It was claimed defendants had no notice that the banana peeling was there and it had not been there for a sufficient length of time for appellees to have constructive notice of the soiled and dangerous condition of their floor. The court sustained the motion and set the judgment aside, and entered a judgment in favor of appellees. The question to be determined on appeal is whether or not the court acted properly in setting aside the original judgment.
The general rule that the possessor of property is required to make safe the premises on which another is invited or to warn him against hidden danger, is expressed by Prosser in his work, Handbook of The Law of Torts, 3rd Ed. Section 78 (1955), at page 452, in the following language: Continuing his discussion on * * *'page 459, the author says:
In a similar case, previously considered by this Court, (Miss. Winn-Dixie Super Markets v. Hughes, 247 Miss. 575, 156 So.2d 734, 1963), it was said:
'Generally the liability of a proprietor in failing to render the premises reasonably safe, or failing to warn invitees of existing dangers, must be predicated upon the proprietor's superior knowledge concerning the danger. With respect to the necessity of evidence concerning notice of the dangerous floor condition, 'there are two rules of fundamental significance. The first of these is that where the floor condition is one which is traceable to the proprietor's own act--that is, a condition created by him or under his authority--or is a condition in connection with which the proprietor is shown to have taken action, no proof of notice is necessary.
* * *
'The second rule, in contrast with that applicable to a floor condition resulting from the act of the proprietor, is this: '* * * where it appears that a floor in a store or similar place of business has been made dangerous by litter or debris present thereon, and that the presence of the litter or debris is traceable to persons for whom the proprietor is not responsible, proof that the proprietor was negligent in relation to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that, in the exercise of reasonable care, he should have known of it.' * * *
'In both types of cases, negligence of the defendant and notice to him...
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