Sterling Stores Co. v. Martin, 5-3448

• Decision Date: 08 February 1965
• Docket Number: No. 5-3448,5-3448
• Citation: Sterling Stores Co. v. Martin, 386 S.W.2d 711, 238 Ark. 1041 (Ark. 1965)
• Parties: STERLING STORES COMPANY, Inc., Appellant, v. Pattie J. MARTIN and George Martin, Appellees.
• Court: Arkansas Supreme Court

Page 711

386 S.W.2d 711

238 Ark. 1041

STERLING STORES COMPANY, Inc., Appellant, v. Pattie J. MARTIN and George Martin, Appellees.

No. 5-3448.

Supreme Court of Arkansas.

Feb. 8, 1965.

Rehearing Denied March 8, 1965.

Wright, Lindsey, jennings, Lester & Shults, Little Rock, for appellant.

Milton G. Robinson, Stuttgart, for appellees.

WARD, Justice.

This litigation grows out of an injury resulting from a 'swinging door' accident.

Appellant (Sterling Stores Company, Inc.) conducts a variety store in Stuttgart in a building facing Main Street. Prospective patrons enter and exit the building through two entrances on Main Street set back (into the building) three or four steps from the building line. At each entrance there are two swinging doors with double action hinges.

In her complaint appellee (Pattie J. Martin) alleged that after she had passed through one particular door (and was inside the building) she was suddenly struck by said door (on the back swing) with great force and violence; and, that the bottom of the door hit her across the top of the foot or instep while her foot was resting on the floor, resulting in severe injuries. Appellee also alleged specific instances of negligence, on the part of appellant, including the following: the said door was very heavy and had a metal strip across the bottom; that the bottom of the door was one and one-half inches from the floor of the building; that the springs on the door were adjusted to make it swing harder than was necessary; and, that appellant knew of these conditions of the door. Appellant denied all material allegations, and argued that the accident was unavoidable, and that all injuries were caused by appellee's negligence and carelessness.

The case was presented to a jury on the pleadings, depositions and oral testimony, and the trial resulted in a verdict in favor of appellee in the amount of $8,640. Appellant now prosecutes this appeal seeking a reversal on the ground that the trial court erred: One, in refusing to grant its motion for a directed verdict; Two, in refusing to declare a mistrial; and, Three, in giving certain instructions. Appellant also contends the verdict is excessive.

One. Appellant did not demur to the complaint, but did offer the following instruction, which was refused by the court:

'At the close of the entire case, the Court instructs the jury that under the law and the evidence the plaintiff cannot recover from the defendant Sterling Stores and your verdict will be for the defendant.'

Although the meaning of the above instruction is not entirely clear, we will treat it as a challenge to the sufficiency of the evidence to support the jury verdict. The burden of appellant's contention in this connection appears to be that there is no evidence to show any negligence on its part--calling attention to the fact that there is nothing in the testimony to show the door was defective, or that it differed in any way from the normal door used under the same conditions. A summary of the testimony offered on behalf of Mrs. Martin refutes, we think, the position taken by appellant on this point.

Appellee testified in substance: The door I went through (also the other doors) will swing open toward the inside and the outside; the door was open on the inside when I went through it--it was pushed back all the way as I have seen it on numerous occasions before; as I put my right foot in I saw the door coming and I threw up my hands, but it was coming with such force I couldn't hold it back; the door struck my foot--just rolled up on my foot, i. e. my foot was caught under the door, and Mrs. Cash had to help me get it free. I have been trading at that store for seventeen years. Appellee's husband testified: I inspected the door at the request of my attorney; it has three double-spring hinges which can be adjusted to make it swing harder or easier, and weighs about 75 or 80 pounds; I examined the hinges and they didn't appear to have been adjusted lately; the door did not have a resister to slow it down, but had a metal strip on the bottom. Other testimony showed the bottom of the door was about one and one-half inches above the floor. A Mrs. Cash testified she was in the store when the accident happened, saw the door when it swung toward appellee and hit her, and called a doctor. Ola Mae White who has worked for appellant several years in the Stuttgart store testified: I am familiar with the door in question; there is no way to prop the door back on the inside because of a popcorn machine. Mrs. John Raab, a witness for appellant, testified on cross-examination she was familiar with the door, that it swung too hard and that 'it would hit you like a ton of brick'.

Viewing the above evidence in the light most favorable to appellee, we cannot say there is no substantial evidence from which the jury could have found appellant guilty of negligence in failing to adjust the hinges of the door to make it swing easier and in allowing the bottom of the door to swing one and one-half inches above the floor. It is urged that 'liability of the owner or tenant of a building for injury resulting from the defective or dangerous condition of a swinging door must be predicated upon knowledge of such condition upon the part of such owner or tenant'. This matter will be referred to under the next point. We feel it would serve no useful purpose to review the many authorities cited in appellant's brief on this point, because none of them announces any legal bar to recovery in a case of this nature.

Two. (a) In the opening statement appellees' counsel made this statement:

'Now I think the proof in this case will show that the doors that are now located at the Sterling Store is not the same door that was involved in this accident.'

Appellant objected to the statement and asked for a mistrial. In chambers the trial judge told appellees' attorney, for the record, he would only be allowed to introduce evidence with reference to the door in place at the time of the accident, and there was no further objection or request by appellant on that point. In fact, a fair inference from appellant's reply is that he was satisfied with the court's ruling. It would be unfair now, we think, to find reversible error was committed under those circumstances.

(b) Under this same point appellant raises another question that has given us considerable concern. C. M. Baldenweck (manager of the store at Stuttgart) was called as a witness by appellant. On cross-examination the following occurred:

'By Mr. Robinson: Q. Do you know that other people have been hurt with that door?

'Mr. Storey: If the Court please, Mr. Robinson knows that is an improper question and I ask the Court to have it stricken from the record and ask for a mistrial at this time.

'The Court: I think it can go to the jury for what it is worth.

'Mr. Storey: The Court is going to permit a question like that?

'The Court...