Seal v. Safeway Stores Inc.
| Decision Date | 15 March 1944 |
| Docket Number | No. 4806.,4806. |
| Parties | SEAL et al.v.SAFEWAY STORES, Inc. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Bernalillo County; Henry G. Coors, Judge.
Action by Mrs. J. D. Seal and Mr. J. D. Seal against Safeway Stores, Inc., for personal injuries sustained by Mrs. J. D. Seal as a business visitor upon the store premises of defendant. From a judgment for defendant, the plaintiffs appeal.
Judgment affirmed.
Where there was no proof that customer requested that large bundle be carried from store to automobile in parking space, in action by customer for injuries sustained from fall while carrying bundle, it was immaterial whether any employee had offered to carry bundle for her.
Rodey, Dickason & Sloan, of Albuquerque, for appellants.
W. A. Keleher and A. H. McLeod, both of Albuquerque, for appellee.
Appellants Seal and husband, hereinafter to be referred to as plaintiffs (or plaintiff when referring to Mrs. Seal only), brought suit against Safeway Stores, Inc., hereinafter to be referred to as defendant, for personal injuries suffered by plaintiff as a business visitor upon the store premises of defendant. At the close of plaintiff's case, the trial court directed a verdict in favor of defendant, a judgment was entered thereupon and plaintiffs appeal.
The review here sought is primarily to obtain a review of the trial court's decision that the evidence of negligence on the part of defendant was insufficient to go to the jury. In addition to this principal issue, plaintiffs have assigned error to certain rulings of the court as to the admissibility of some evidence offered on behalf of
plaintiffs. The case is here upon a diminished record, at plaintiff's request, eliminating matters not pertinent to the issues above mentioned, and the recapitulation of the facts is likewise limited and goes only to such issues.
[1] Counsel for plaintiffs have, in their able brief, fairly and fully set out the evidence, naturally in an aspect most favorable to them; but it is in this favorable light that the evidence must be appraised. Mesich v. Board of County Com'rs, etc., 46 N.M. 412, 129 P.2d 974.
The plaintiff, a young matron, conducts a pie manufacturing business in her home in Albuquerque. She makes purchases from various grocery stores of supplies for her pie business and for her household. On the afternoon of March 13, 1942, in broad daylight, she went to the defendant's store on North Second Street in Albuquerque for this purpose. She had been in this store several times before. She purchased a sizable quantity of groceries and these were placed in a large paper sack by the defendant's agent, a clerk. The bag's size is indicated by the fact that when the plaintiff held it in both arms before her, the top of it came to her chin.
The plaintiff picked up the sack in this manner and proceeded to leave the store, intending to return to her car. Thus burdened, and without turning her head to look around the sack, she could not see where she was placing her feet in walking. In addition to the limitation of her range of vision caused by the sack of groceries, plaintiff states that as she walked toward the parking space she did not notice the ground particularly because she had to look out for the traffic of cars of other customers, coming on and leaving the customary parking space in front of the store. Some of these cars parked very close to the store. She was looking “where she was going”, and not at her feet.
Outside the door, and some 12 to 15 feet therefrom and in the direction in which the plaintiff was then traveling, there is a 4 inch change of level as one steps down from the walk to the parking area. The defendant's store is set back a distance of 40 feet or so from the inner edge of the public sidewalk. All of the area between the public sidewalk and the store front, except a 4 foot strip (a private, or store, walk), adjacent to the front and side of the store building is on the same level as the public sidewalk and is used as a parking area for the store's patrons. The 4 foot strip referred to is on the same level as the floor of the store and is about three and one-half to four inches above the level of the parking area. In leaving the store and going to a parked car in front thereof, one encounters no change of level just at the door of the store; but about 4 feet outside the door there is a change of level, of about 4 inches, to the level of the front parking area. The higher strip of 4 feet along the front of the building, and the parking area are both paved with cement of the same color. However, plaintiff did not fall exactly in front of the store but rather at the south end of the 4 foot wide walk, or strip, running the length of the store, and at the place where it drops some 3 or 4 inches to the paved parking level at the southeast corner of the store. She had thus walked along the 4 foot wide paved walk, with its 3 or 4 inch higher elevation, after leaving the front door entrance for some 10 or 12 feet before encountering at the corner the slight drop in elevation, where she fell.
When the plaintiff, burdened as described, reached the edge, or end, of this change of level, she did not realize, or had forgotten, it was there. In stepping, her right foot came down with the back of the foot on the higher level and the front overhanging the edge. This caused her to lose her footing and she fell to the ground, causing injury to her hands, ankle, knees and back. She was suffering from some prior injury to her foot which perhaps made her less foot-sure and perhaps left her with a weak foot and ankle, if that should be important.
Two other customers nearby helped her to her feet; the defendant's store manager, one Tixier, was summoned. He sent the plaintiff to a doctor.
As a result of the accident, the plaintiff sustained serious personal injuries. It is unnecessary to describe them fully for reasons hereinbefore noted.
After the accident, in conversing with the said manager, plaintiff's husband (also a party plaintiff here) was assured by him that the defendant would take care of “all the expenses”, “everything connected with the accident”.
Going to the question presented by two of the assignments of error, whether certain evidence offered on the part of plaintiffs was properly excluded, it is to be noticed that at the trial her counsel asked her whether the defendant's employees had offered to carry her groceries to her car for her after they had been purchased and wrapped. This was objected to as leading and subsequently on the ground that it was immaterial because the defendant was under no duty to carry its customers' bundles, at least without request. In each instance, the Court sustained the objection subject to the plaintiffs' exception. A negative answer which had been given was stricken.
At another point, plaintiff's counsel asked her whether the manager of ...
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