Stogner v. Great Atlantic & Pacific Tea Co.

Decision Date27 July 1937
Docket Number14520.
Citation192 S.E. 406,184 S.C. 406
CourtSouth Carolina Supreme Court

Appeal from Florence County Court; R. W. Sharkey, County Judge.

Action by F. A. Stogner against the Great Atlantic & Pacific Tea Company. Verdict and judgment for plaintiff, and the defendant appeals.


Willcox Hardee & Wallace, of Florence, for appellant.

McEachin & Townsend, of Florence, for respondent.


The plaintiff brought this action for the recovery of damages for alleged personal injuries (a hernia), claimed to have been suffered by him while employed as the manager of the defendant's store in Hartsville, S. C., on June 22, 1934.

The complaint alleges:

"That on or about June 22, 1934, the plaintiff, in the course of his employment as salesman in the defendant company's Hartsville store, was lifting a front quarter of beef weighing about one hundred and fifty (150) pounds, from the scales into the meat box of the said store, a distance of about six feet; that after he had entered the said meat box and had proceeded about midway, the boards and joists of the floor of the meat box, due to their rotten condition, broke under the plaintiff's feet, causing him to sink into the sawdust packing, throwing the plaintiff off his balance and against the shelving of the meat box, and finally casting him to the floor, where the quarter of beef fell on him and the shank bone was thrust into his side so suddenly and violently as to cause a dangerous rupture."

The chief specification of negligence upon which the decision of this appeal depends is that the defendant failed to properly inspect and maintain the meat box or large refrigerator in its store, so as to prevent the rotting through and undermining of a floor joist and floor board therein; and in assuring the plaintiff that the said floor would be repaired, and that it would be safe for the plaintiff to use it, although the defendant knew of the dangerous condition thereof.

The defendant's answer is a general denial and contains pleas of assumption of risk, and contributory negligence.

The trial resulted in a verdict for the plaintiff, and the defendant appeals to this court from the refusal of the county judge to grant its motions for a nonsuit and for a directed verdict.

Error is predicated upon the ground that all the testimony in the case shows that the plaintiff fully appreciated any danger incident to the use of the ice box, with the floor in the condition which he admittedly knew it was in, for a period of three months prior to his injury, and that his acts and conduct under the circumstances as shown by the testimony amounted to an assumption of the risk of the dangers incident to working under the conditions which existed, and to contributory negligence, as a matter of law.

The respondent, at the time of his injury, was twenty-eight years of age, and had been working for the defendant for about eight years, and was experienced in the handling of meat and in the conduct of a grocery store. Part of the equipment in the store consisted of an ice box about 6 feet wide, 10 feet long, and 7 feet high, in which were stored meat and other products sold by the defendant. The floor of the ice box was constructed of boards 1 1/2 inches wide, running lengthwise, which were laid upon and supported by floor joists, spaced about 24 inches to 30 inches apart. The respondent testified that the only practicable way to carry a fore quarter of beef was to clasp it in his arms, and in this manner move it from the scales in the store to a hook in the ice box, where it would be hung; that this was the usual and customary method used in carrying and handling the beef, and when so doing it was difficult to see ahead.

He also testified that a floor board near the center of the ice box was decayed from a drip of water falling from the overhead ceiling; that it appeared to him that it would break through, and that it should be repaired; and that for this reason he reported this condition to Mr. Jackson, the appellant's assistant superintendent, who visited the store for the purpose of inspection and supervision two or three times a week; that he as manager of the store had no authority to make or authorize any repairs; that when any such work was necessary on any equipment or on the building, it was his duty to report it to Mr. Jackson. According to the plaintiff, he first made this report to the assistant superintendent about three months prior to the accident, and again two weeks preceding its date; and it was brought out on cross-examination from the respondent that he reached the conclusion that if he placed his foot at the point of decay the board would likely break through, and would probably cause injury. But he further testified upon direct and cross-examination that the superintendent promised to have the apparently rotten board repaired, and assured him that it was safe to continue to use it, and that he relied upon Mr. Jackson's assurance that it was safe.

The plaintiff was constantly in and out of the ice box each day in connection with the conduct of the defendant's business, and testified that while carrying the fore shoulder of beef, in the manner described, his foot went through the rotten flooring at a point where the ends of two floor boards met and were fastened to the floor joist, causing him to be injured in the manner alleged in the complaint. That not only did this particular floor board break through, but that the joist upon which it was nailed was rotten, and broke through. That while he appreciated the fact that the board at that point was decayed, he had no knowledge that the joist beneath it was rotten and unsafe.

There is a sharp conflict of testimony upon all the material points in issue: The defendant's theory being-and it is supported by evidence-that the plaintiff suffered his injury when lifting the beef from the scales before he ever reached the ice box; and that the injury occurred in this...

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