Sanitary Grocery Co. Inc v. Steinbrecher

• Decision Date: 15 January 1945
• Citation: 32 S.E.2d 685,183 Va. 495
• Court: Virginia Supreme Court
• Parties: SANITARY GROCERY CO., Inc. v. STEINBRECHER.

32 S.E.2d 685

183 Va. 495

SANITARY GROCERY CO., Inc.

v.STEINBRECHER.

Supreme Court of Appeals of Virginia.

Jan. 15, 1945.

Error to Hustings Court of City of Richmond, Part II; Willis C. Pulliam, Judge.

Action by Annie A. Steinbrecher against the Sanitary Grocery Company, Inc., and others, to recover for injuries sustained in defendant's store. To review a judgment for plaintiff, defendant brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Parrish, Butcher & Parrish, of Richmond, for plaintiff in error.

Thomas A. Williams and L. C. O'Connor, both of Richmond, for defendant in error.

GREGORY, Justice.

Mrs. Annie A. Steinbrecher instituted an action in the court below against Sanitary Grocery Company, Inc., for damages for personal injury and obtained a verdict and judgment for $500.

The facts are not in dispute. Sanitary Grocery Company, Inc., operates a number of grocery stores. Mrs. Steinbrecher, who was 79 years of age at the time, was a regular customer of the defendant's store located at the corner of Mulberry and Cary streets in Richmond. She went there on May 23, 1942, to make certain purchases, and while standing in line waiting to pay for her purchases it occurred to her that she needed another article. She turned to go down the aisle after it and as she did so her leg came in contact with a sharp corner of a piece of projecting shelving which formed a part of a counter. She received what the doctor described as a "punctured wound" on the outer side of her leg. A blood vessel or artery was cut. She was incapacitated for three months, and had her leg bound for some six months.

A representative of a manufacturer who manufactures counters for the defendant corporation and other like concerns testified that his company had placed the counter in the defendant's store eleven months before the plaintiff received her injury, and though he had never seen it, the counter was of approved standard construction and design and in general usage in like stores. This testimony was taken out of the presence of the jury, and finally excluded on the plaintiff's motion.

Another witness testified out of the presence of the jury that 1, 000 customers went into the store each day and no one had been hurt by the shelving prior to the time the plaintiff received her injury. Onmotion of the plaintiff this testimony was also excluded.

We think the jury could have concluded from the evidence that the defendant was guilty of actionable negligence. At the time, according to the evidence of the plaintiff, it maintained a counter which had a sharp or pointed edge on the lower shelf. This was immediately adjoining the aisle where the customers had to pass in order to pay their bills. It was the cause of the plaintiff's injury. Nor do we think the plaintiff was guilty of contributory negligence as a matter of law. This question was submitted to the jury under proper instructions and resolved against the defendant.

The plaintiff was an invitee of the defendant, and the principle stated in Eastern Shore of Virginia Agricultural Association v. Le Cato, 151 Va. 614, 144 S.E. 713; Knight v. Moore, 179 Va. 139, 18 S.E.2d 266, and Acme Markets v. Remschel, 181 Va. 171, 24 S.E.2d 430, applies both as to the actionable negligence on the part of the defendant and the alleged contributory negligence on the part of the plaintiff.

It is insisted that the shelving was designed, constructed, and maintained in the customary form for such shelving generally in use in similar stores in this locality, and that this is the standard of care required of the defendant, and therefore it was not negligent. An instruction to this effect was offered and refused. This action was assigned as error.

There is no contradiction of the fact that the plaintiff injured her leg by striking the sharp corner of one of the lower shelves of the counter. The object she struck was pointed and sharp because it caused a ''punctured wound", and cut a blood vessel from which she bled copiously. Certain photographs of the shelving were introduced, and from an inspection of them it is disclosed that the shelving on the corner where the plaintiff was hurt is pointed and jharp in appearance. We realize that phonographs are not always trustworthy in.legligence cases, but here a witness testified that the photographs correctly disclosed the corner and sharp edge.

No witness testified that at the time of the plaintiff's injury the counter and shelving were being maintained in accordance with good standards and practice for a business of that kind. The witness by whom it was sought to establish that the partic ular counter was of the usual and customary design did not testify that he had ever seen the counter in this particular store. In fact he expressly stated, in answer to the question as to...