Safeway Stores, Inc. v. Tolson

• Decision Date: 09 October 1961
• Docket Number: No. 5287,5287
• Citation: 203 Va. 13,121 S.E.2d 751
• Court: Virginia Supreme Court
• Parties: SAFEWAY STORES, INCORPORATED v. DORIS TOLSON. Record

Page 751

121 S.E.2d 751

203 Va. 13

SAFEWAY STORES, INCORPORATED v. DORIS TOLSON.

Record No. 5287.

Supreme Court of Appeals of Virginia

October 9, 1961.

James Ashby, Jr. (Goolrick, Ashby & Whitticar, on brief), for the plaintiff in error.

Frank D. Swart (Leigh, Kincheloe & Swart, on brief), for the defendant in error.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

This involves an action for personal injuries received by Mrs. Tolson as the result of a fall on Wednesday, February 5, 1958, while shopping in the Safeway Stores self-service market in the town of Manassas. The case was tried before a jury and a verdict of $10,000 was returned in favor of Mrs. Tolson. Judgment was entered thereon over the objection of Safeway Stores.

The assignments of error charge (1) that the court erred in denying the motion of Safeway to strike the plaintiff's evidence at the conclusion of her evidence and at the conclusion of all the evidence; (2) that the court erred in granting any instructions for the plaintiff; and (3) that the court erred in denying the motion of defendant to set aside the verdict and enter judgment for the defendant.

The crucial question is: Did Mrs. Tolson sustain the burden of proving negligence on the part of Safeway Stores?

Plaintiff's allegation of negligence in her motion for judgment is 'the defendant did negligently permit a foreign substance to be on the floor of said store in the aisle thereof where plaintiff was walking, which said foreign substance made said floor slippery and dangerous for the public to use, and which said foreign substance and the danger therefrom was not readily noticeable by a careful and prudent person in the normal use of said premises for the selection and purchasing of groceries. The identity of said foreign substance is unknown to plaintiff but it was in the nature of sawdust or sand. * * * (As) a result of said foreign substance being on the floor of said premises, the plaintiff did slip and fall to the floor.'

The defendant, in its answer, denied any negligence on its part.

The evidence, stated in the light most favorable to Mrs. Tolson, is that she, accompanied by her teenage daughter, shopped throughout the defendant's store and proceeded to the check-out counter. As she was in the process of checking out she decided to exchange some preserves. Leaving her daughter at the check-out stand, she proceeded toward the preserves counter, and on her way she slipped and fell, sustaining the injuries complained of. The produce manager assisted her to her feet; whereupon she and the store manager examined the floor and she discovered what she termed 'particles of sawdust'. The store manager rubbed his foot across the floor and said the substance felt to him like sand or grit and that 'it was no more than normal during a traffic period. ' Mrs. Tolson testified that she could not observe the substance from a standing position but noticed it after she had fallen to the floor.

Mrs. Tolson was wearing a pair of new 'loafers' with leather heels and leather soles. She judged she had had them about four weeks at the time of the fall.

The uncontradicted evidence of the defendant regarding cleaning procedures in effect at the store was that the floors were mopped each Saturday night and waxed with a non-slip wax; that the floors were swept two or three times a day as it became necessary; that no sawdust or sweeping compound was used, and there was no substance on the floor in the area in which plaintiff fell which had been placed there for the purpose of cleaning the floors.

Floyd Cornwall, the produce manager who assisted Mrs. Tolson after her fall, examined the floor at the time and found it normally clean and free of any foreign substance or anything that he could observe that might have been hazardous.

Mrs. Tolson was asked by her counsel: 'Did that substance cause you to slip?', to which she answered, 'I believe it did.'

There was no proof that the store management had placed any sawdust or any other substance on the floor, and Mrs. Tolson, testifying in her own behalf, stated that she did not see the substance from a standing position but only after she had fallen and was sitting on the floor.

The basis of this suit is negligence, and the burden of proving negligence was on the plaintiff. The duty owed the plaintiff by the defendant was one of reasonable care; it was not an insurer of the...