Sparks v. Allen Northridge Market

• Decision Date: 28 December 1959
• Citation: 176 Cal.App.2d 694,1 Cal.Rptr. 595
• Court: California Court of Appeals Court of Appeals
• Parties: Marle SPARKS, Plaintiff and Appellant, v. ALLEN NORTHRIDGE MARKET, Lloyd Allen, Doe 1, Doe II and Doe III, Defendants, Lloyd Allen, Respondent. Civ. 23822.

Page 595

1 Cal.Rptr. 595

176 Cal.App.2d 694

Marle SPARKS, Plaintiff and Appellant, v. ALLEN NORTHRIDGE MARKET, Lloyd Allen, Doe 1, Doe II and Doe III, Defendants, Lloyd Allen, Respondent.

Civ. 23822.

district Court of Appeal, Second District, Division 3, California.

Dec. 28, 1959.

Morton J. Salsberg, Reseda, for appellant.

Robert A. Cushman and Henry E. Kappler, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from a judgment for defendants notwithstanding the verdict in an action for damages for personal injuries.

Defendant Lloyd Allen was the owner of a retail supermarket in Northridge. It is conceded plaintiff was an invitee in the market. The complaint alleged that on May 27, 1957 defendant 'negligently, carelessly and unlawfully placed and stacked its merchandise in such manner as to cause the same to fall on and about Plaintiff's right foot while she was in said market.'

On the day of the accident there were about 30 cartons of root beer stacked at a corner of two aisles. One of the aisles ran east and west; the other, north and south. The cartons were 'sort of' wrapped around the corner of the two aisles. They were stacked 5 high right up from the floor. The floor was cement. Each carton was about 10 inches high, and contained 8 bottles filled with root beer. The cartons were of cardboard; they were open; the sides came up 2 or 3 inches; the front came up about 4 inches; about 6 inches of each of the 4 front bottles were exposed. The cartons had been stacked by a sales-driver of Hires Company at the direction of defendants. The root beer was on display. The display was done once or twice a year. It was 'a promotional deal.' Hires root beer is a carbonated drink under high pressure. The customers helped themselves to the root beer in the stacked cartons. When one or more bottles were sold they were replaced.

A rough sketch of the layout, found in respondent's brief, is reproduced:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Customers use pushcarts in which to carry their purchases. The pushcarts are up to 18 inches wide. There is a turnover of about 25 pushcarts used by customers each year. They are serviced twice a year. The 'public treats them pretty rough.'

Plaintiff Mary Sparks testified: On May 27, 1957 I entered the market, went through a turnstile, took a pushcart, and proceeded easterly down an aisle. I was going to the back to the refrigerator to get some milk. As I was making the turn at the intersection of the east and north aisles, another lady was coming north down the aisle which runs north and south in front of the refrigerator. She was coming toward me on my right from in front of the milk counter, and there were some men putting up a nut display. I wanted to go around the corner. I backed up a ways to make room for the lady coming toward me 'to get by with the men standing there with the--displaying the nuts.' I moved backward when I saw her coming. I pulled my cart back. It hit the root beer bottles. There was an explosion. Glass went in and out of my foot. I was pulling the cart back when it struck the root beer bottles. The right-front wheel of the cart hooked on to the cartons. I do not remember whether I had seen the stacks there. I knew the display was there because I had seen it a couple of days before. The egg counter prevented me from seeing the root beer cartons as I approached them. The root beer cartons were stacked on the north and east sides of counter 8. As I recall, they were stacked from the floor 6 high and 4 wide on each side. Each carton held 8 bottles. The wheels on the cart I was pushing were rather wobbly. I had trouble keeping it straight. All I had in my shopping cart was my purse.

Neil Sparks, plaintiff's husband, testified: I walked into the store right after the accident happened to see the cause of the injury. I saw root beer bottles stacked up 5 high, partially in the aisle, on both the north and east sides. The stacks were close to 3 feet wide on each side. There was nothing separating the layers of the root beer bottles.

There was evidence that one bottle out of the second carton up fell and hit the floor; it exploded into about a dozen pieces; and that the carton was in the stack on the northeast corner.

Defendants' motion for a directed verdict was denied. The jury returned a unanimous verdict in plaintiff's favor for $2,500 damages. Defendants' motion for judgment notwithstanding the verdict was thereafter granted and judgment for defendants entered. Plaintiff appeals.

It is hardly necessary to say that in inferences can reasonably and fairly be deduced from the evidence which sustain the allegations of the complaint it is error to grant a judgment notwithstanding the verdict. A motion for judgment notwith-standing the verdict should be granted only if it appears from the evidence and the reasonable inferences therefrom, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. 28 Cal.Jur.2d 678, § 45. The rules governing a motion for judgment notwithstanding the verdict are the same as those applicable to the determination of a motion for a judgment of nonsuit and for a directed verdict. Voorheis v. Hawthorne-Michaels Co., 151 Cal.App.2d 688, 697, 312 P.2d 51; Schramko v. Saulter, 146 Cal.App.2d 549, 551, 303 P.2d 1061.

Negligence may be established by circumstantial evidence, which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts. A plaintiff relying on circumstantial evidence does not have to exclude the possibility of every other reasonable inference possibly deriving from the evidence. Sanders v. MacFarlane's Candies, 119 Cal.App.2d 497, 500, 259 P.2d 1010; Johnson v. Nicholson, 159 Cal.App. 2d 395, 405, 324 P.2d 307. We must assume the truth of plaintiff's evidence and every inference of fact which reasonably may be drawn therefrom.

The law imposes on the owner-operator of a...