Smith v. Safeway Stores
| Decision Date | 22 January 1943 |
| Docket Number | No. 14472.,14472. |
| Parties | SMITH v. SAFEWAY STORES, Inc. |
| Court | Texas Court of Appeals |
Appeal from District Court, Denton County; B. W. Boyd, Judge.
Action by Mrs. Vada Smith against Safeway Stores, Incorporated, for injuries sustained by a fall while she was in defendant's store as an invitee. Defendant's motion for an instructed verdict was overruled and verdict was for plaintiff. From a judgment for defendant notwithstanding the verdict, plaintiff appeals.
Affirmed.
W. C. Boyd, of Denton, for appellant.
Robertson, Leachman, Payne, Gardere & Lancaster and Henry D. Akin, all of Dallas, for appellee.
Appellant, Mrs. Vada Smith, a widow, has appealed from a judgment notwithstanding the jury verdict, entered by the court in favor of appellee, Safeway Stores, Incorporated.
Appellant's allegations were sufficient to show that she entered appellee's store as an invitee, and after she had been in the store fifteen or twenty minutes, doing her shopping, she stepped on a banana peel and fell, sustaining injuries for which she instituted this suit. That appellee's store is conducted in such a way that customers select from convenient stock merchandise which they desire to purchase and carry it to a checking counter where an employee wraps and collects for it.
The substance of appellant's allegation of negligence is that appellee permitted banana peels and other debris to accumulate and stay in the aisle of its store, thereby rendering it dangerous for appellant and others to use said aisles; that said negligence was the proximate cause of the injuries sustained by her.
The statement of facts consists of an agreed narrative and the testimony, on the charge of negligence, taken in its most favorable light to appellant, is in substance that appellant entered the store to buy groceries; that there is an aisle between two counters, one of which is a "bargain" counter and another is the vegetable counter; after visiting the former she went to the latter to select a cabbage; she had been in the store fifteen or twenty minutes before she went to the vegetable counter; she did not notice any other person near the vegetable counter during the time she was in the store; she picked up the cabbage and turned to go back toward the bargain counter, and as she turned around her feet slipped out from under her and she fell violently to the floor; as they picked her up from the floor she had a banana peel and carrot tops sticking to the heel of her shoe; and that the banana peel and carrot tops caused her to fall.
A witness who was attending a local college testified that he worked part time at the store and that his duties were to sweep the floor of the store, usually about three times a day; he was sweeping when Mrs. Smith fell; he did not see her fall; he had swept the floor clean around the vegetable counter twenty or twenty-five minutes prior to the accident; there were other people in the store when Mrs. Smith fell; search was made in the rear of the store, among the accumulations from around the vegetable counter, and carrot tops were found, but no banana peels.
At the conclusion of taking testimony, appellee moved for an instructed verdict, assigning detailed reasons, that there were neither pleadings nor testimony upon which any issue of fact could be submitted to the jury; the motion was overruled and the case was submitted on special issues. In response, the jury found that appellant stepped on a banana peel, fell and sustained an injury; that appellee was negligent in allowing the banana peel to be on the floor that such negligence was the proximate cause of the accident, and that appellant had sustained damages in the sum named in the verdict.
On motion of appellee, the court entered judgment non obstante veredicto in its behalf. The appellant perfected this appeal.
Appellant presents two points for reversal: (1) "Was the defendant negligent in allowing the banana peel to lie upon the floor at the time of the injury of the plaintiff?" And (2) "The court was in error in rendering judgment for the defendant non obstante veredicto."
We do not think either point is well taken. From appellant's brief we gather that in support of her first point, she contends that app...
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