Seigel v. Kroger Grocery & Baking Co.

• Decision Date: 06 October 1942
• Docket Number: No. 26116.,26116.
• Citation: 164 S.W.2d 645
• Court: Missouri Court of Appeals
• Parties: SEIGEL v. KROGER GROCERY & BAKING CO.

164 S.W.2d 645

SEIGEL v. KROGER GROCERY & BAKING CO.

No. 26116.

St. Louis Court of Appeals. Missouri.

October 6, 1942.

Appeal from Circuit Court, City of St. Louis; Robert L. Aronson, Judge.

"Not to be reported in State Reports."

Action by Sarah Seigel against Kroger Grocery & Baking Company for injuries sustained when plaintiff fell in defendant's store. Verdict for defendant and from order granting plaintiff a new trial on ground that verdict was against the weight of the evidence, defendant appeals.

Order affirmed and cause remanded.

Wayne Ely, of St. Louis, for appellant.

Hyman G. Stein and Chelsea O. Inman, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff when she was caused to fall by allegedly tripping over a wire basket left standing in an aisle in the store of defendant, Kroger Grocery & Baking Company, located at 5701 Delmar Boulevard, in the City of St. Louis. Upon a trial to a jury, a verdict was returned in favor of defendant. Plaintiff thereupon moved for a new trial; and her motion being sustained by the court upon the ground that the verdict was against the weight of the evidence, defendant's appeal to this court has followed in the usual course.

The gist of the negligence relied upon by plaintiff was the act of one of defendant's employees, while acting within the scope of his employment, in allowing the wire basket to be and remain in the aisle of the store at a point where customers were allegedly not likely to see it, but instead were likely to come in contact with it and be caused to fall thereby.

The answer was a general denial, coupled with a plea of contributory negligence to the effect that plaintiff, on the occasion in question, carelessly and negligently failed and omitted to pay attention to where she was walking, and carelessly and negligently failed and omitted to take notice of her surroundings and to see the box or basket mentioned in her petition, which box or basket was allegedly part of an open and obvious display of merchandise, and would allegedly have been readily and clearly visible to plaintiff had she not been negligent in the particulars charged against her.

Inasmuch as the lower court sustained the motion for a new trial upon the express ground that the verdict was against the weight of the evidence, the sole point for our determination (since plaintiff insists upon none of the other grounds of her motion) is whether there was substantial evidence adduced which would have supported a verdict for plaintiff, that is, a verdict contrary to the one returned. If not, then there was no opposing evidence for the trial court to weigh; and in purporting to grant the new trial upon the ground assigned, the court would necessarily have abused the discretionary power accorded to it of granting one new trial if satisfied that the jury's verdict is against the weight of the evidence. But on the other hand, if there was substantial evidence for plaintiff, which, if it had been believed by the jury, would have entitled her to a judgment in her favor, then the court's exercise of its discretion is not to be disturbed, and the order granting the new trial must be affirmed. State ex rel. v. Ellison, 268 Mo. 225, 186 S.W. 1075; Lindsey v. Vance, 337 Mo. 1111, 88 S.W.2d 150; Davis v. Johnson, 332 Mo. 417, 58 S.W.2d 746; Wood v. Walgreen Drug Stores, Mo.App., 125 S.W.2d 534; Little v. Manufacturers Railway Co., Mo.App., 145 S.W.2d 497; Chitwood v. Davis Construction Co., Mo.App., 113 S.W.2d 1043.

Defendant's store, which is one where the customers serve themselves, has racks or counters running lengthwise of the store upon which defendant displays certain types of its merchandise for the convenience of its customers in making their selections. Alongside each of such racks or counters there is an aisle or floor space reserved over which the customers walk while choosing the items which they wish to purchase. Wire baskets are furnished for the use of the customers in their progress through the store; and when each customer has completed his selection of meats, groceries, and the like from the several different departments, he takes whatever items he intends to purchase to the checking stand near the front of the store, where an employee checks the price of each and every item and receives the customer's payment of the total amount of his bill.

The accident happened about three o'clock in the afternoon.

Plaintiff, a woman about sixty-one years of age, was shopping in the store in company with her two daughters, both of whom, however, chanced to be in other parts of the store at the time of their mother's fall.

It seems that plaintiff had in mind the purchase of a box of crackers, and at the time of her fall was walking down the middle aisle of the store alongside the rack upon which the crackers were displayed.

At some time earlier in the day the store had received a new shipment of crackers which one Cusumano, the assistant manager,...