Smith v. JC Penny Company

• Decision Date: 14 November 1958
• Docket Number: No. 12388.,12388.
• Citation: 261 F.2d 218
• Parties: Gladys SMITH, Plaintiff-Appellee, v. J. C. PENNEY COMPANY, Defendant-Appellant,
• Court: U.S. Court of Appeals — Seventh Circuit

261 F.2d 218 (1958)

Gladys SMITH, Plaintiff-Appellee, v. J. C. PENNEY COMPANY, Defendant-Appellant,

No. 12388.

United States Court of Appeals Seventh Circuit.

November 14, 1958.

Russell P. Harker, Phil Harker, Frankfort, Ind. (Fred W. Campbell, Frankfort, Ind., on the brief), for appellant.

E. L. Keating, J. Frederick Hoffman, Lafayette, Ind., (R. Eugene Richey, Lafayette, Ind., on the brief) for appellee.

Before DUFFY, Chief Judge, SCHNACKENBERG and HASTINGS, Circuit Judges.

HASTINGS, Circuit Judge.

This diversity action was brought to recover damages for personal injuries sustained by appellee, plaintiff below, in a fall caused by ice on a sidewalk abutting appellant's store. The jury returned a verdict for appellee and assessed damages at $1800. Appellant's motions for a directed verdict, made at the close of all the evidence, and for judgment notwithstanding the verdict were overruled by the trial court, and these rulings are assigned as error on this appeal.¹

A motion for a directed verdict or for judgment notwithstanding is properly denied where the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions. Burg v. Great Atlantic and Pacific Tea Co., 7 Cir., 1958, 256 F.2d 613; Nelson v. Business Men's Assurance Co. of America, 7 Cir., 1939, 108 F.2d 363, 365. The question in this case is, then, whether appellee's evidence is such that the jury could reasonably find, as it did, that appellee's personal injuries were caused by the negligence of appellant. Gunning v. Cooley, 1930, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Nelson v. Business Men's Assurance Co. of America, supra. Appellant's position is that the evidence fails, as a matter of law, to support a finding of negligence on its part.

Appellee was the only witness who testified concerning the accident and her uncontradicted testimony was that, as she was walking past appellant's store, a group of oncoming pedestrians caused her to step toward the store. As she did so, she slipped on a strip of ice, fell and suffered a back and hip injury. She testified further that, after her fall, she noticed water dripping from the edge of a metal cornice protruding from the building and that this water was freezing on the sidewalk in a strip under the cornice and along the building. She stated that this was the only ice on the sidewalk. There was no other evidence as to the condition of the walk at the time of this occurrence.

The manager of the store, called as an adverse witness, stated that appellant was the sole tenant but not the owner of the building. He testified that he was aware that snow accumulated on the cornice and that, when temperature changes occurred, it would melt, fall to the sidewalk as water and freeze.

The cornice in question was a flat, metal projection approximately eight inches in width which served ostensibly as a protective covering for a canvas awning. There is no evidence that the projection or cornice was in any manner defective. There were no gutters or downspouts to divert the dripping water.

Although the law of the State of Indiana controls in this case, the parties agree that the courts of Indiana have not passed on the precise question presented. The owners of property abutting a public sidewalk have no duty to remove ice and snow deposited on their sidewalks by natural means. Cowin v. Sears-Roebuck & Co., 1955, 125 Ind.App. 624, 630, 129 N.E.2d 131, 134. The Appellate Court of Indiana so stated the rule in denying the existence of any civil liability on the part of an owner under a municipal statute providing criminal penalties for failure to remove ice and snow. It is a fair inference from the statement by that court, that there would be a duty on the part of an abutting owner to remove ice and snow which accumulated unnaturally or excessively due either to some artificial channeling of the water by the owner or through negligent maintenance of the building which causes ice to form excessively in localized spots.

Appellant was not the owner of the building in this case but the sole lessee; however, it is generally accepted that a lessee occupying the property with a right to unrestricted use may be liable for any accumulation of ice arising through his own negligence. Blanchard v. Stone's Inc., 1939, 304 Mass. 634, 24 N.E.2d 688; Stefani v. Freshman, 1919, 232 Mass. 354, 122 N.E. 293; Casey v. City of Philadelphia, 1953, 372 Pa. 284, 93 A.2d 470; 52 C.J.S. Landlord and Tenant § 440, p. 120.

Turning again to the evidence in this case, there is nothing to indicate that the cornice on the building involved was added by the lessee after he occupied the property and we must assume that it was a part of the building as leased. Further, there is no indication that the cornice was defective and in need of repair or that it had been negligently repaired or maintained by the lessee.

Many of the cases upon which appellee relies to impose liability on...