Taglione v. Tourtellot & Co., 10624
| Decision Date | 02 December 1965 |
| Docket Number | No. 10624,10624 |
| Court | Rhode Island Supreme Court |
| Parties | Joseph TAGLIONE v. TOURTELLOT & CO., Inc. Ex |
John P. Bourcier, Providence, for plaintiff.
Charles H. Anderson, Providence, for defendant.
This action of trespass on the case for negligence was heard before a justice of the superior court sitting with a jury and resulted in a verdict for the plaintiff in the sum of $1,200. The cause is before us on the defendant's exception to the denial of its motion for a directed verdict and also on the plaintiff's exception to the granting of the defendant's motion for a new trial.
We note at the outset that the question of defendant's negligence is not disputed. The trial justice, in passing on defendant's motion for a directed verdict, expressly stated that there was clearly evidence on which defendant could be found guilty of negligence. The defendant does not seriously question this finding.
The only issue before us, as both parties readily concede, relates to the question of plaintiff's contributory negligence. The plaintiff contends that this was a fact question for jury; the defendant, on the contrary, argues that the probative force of the evidence is so conclusive of negligence by plaintiff that the only reasonable inference to be drawn therefrom is the absence of due care on his part and therefore he is guilty of contributory negligence as a matter of law. With these directly conflicting contentions in mind, we shall proceed to an examination of the pertinent evidence.
The plaintiff, a man fifty-eight years of age, operated a grocery store in the city of Warwick and had been doing business with defendant for approximately twenty-two years. The defendant was a produce wholesaler with a place of business at the fruit and produce building in Providence. The defendant displayed its fruit and produce on a cement platform approximately 4 to 5 feet above street level. Its customers would park their vehicles on the pavement below the platform and would then climb up a series of stairs to defendant's premises.
On September 10, 1958 plaintiff went to defendant's place of business to purchase fruit and produce for his store. When he arrived the area was wet, it was then drizzling, and it had rained the previous night. He parked his car in front of the platform and, while carrying a box of applies to his car, he slipped on the steps leading from the platform to the area where his car was parked. He testified that as he was about in the middle of the steps coming down, his left foot slipped from under him and he fell backward, injuring his back.
He testified further that during the time he had been going to defendant's place there always had been 'junk on the stairs, lettuce, a peel of orange, and even peel of bananas'; that on the day of his injury he noticed a lot of 'stuff on the steps'; that after he had fallen he noticed lettuce on the step and on his shoe; that on the day in question the steps were wet and had lettuce leaves, orange peels, and 'so forth' on them; that before his fall he had made 3 or 4 trips up and down these steps carrying cases of produce; that when he fell be was carrying a box of apples, the box being about 17 inches long and a foot high and weighing about 40 pounds; that with both arms underneath the box he lifted it to the height of his chest; that with the box in this position he could not see the stairs as he walked down them; and that he knew when he started down the stairs that the stairs had this lettuce and orange on them.
The plaintiff also testified that in making purchases he would select his fruit and produce and then be told to get his merchandise and carry it to his own car; that the steps he used and on which he fell were the only ones he could use in leaving defendant's platform; that he never saw anyone cleaning the area or sweeping the steps; that on the morning in question he had been there about twenty to thirty minutes and the steps were in their usual condition, covered with lettuce leaves, orange peels, and so forth. None of his testimony was contradicted by defendant on any point pertinent to the issues before us. On the view we take, we do not deem it necessary to discuss any other evidence.
On this record it is not necessary to consider the question of defendant's negligence. As we have already pointed out it was clearly negligent. The narrow question here relates solely to whether plaintiff was in the exercise of due care at the time of this accident. We hold that on the basis of his own testimony he was guilty of contributory negligence as matter of law and that consequently the trial justice erred in denying defendant's motion for a directed verdict.
We are not unmindful of the rules in this jurisdiction governing the duty of a trial justice in passing on a motion for a directed verdict and it will serve no useful purpose to repeat them here. See Hill v. A.L.A. Construction Co., R.I., 206 A.2d 642; McVeigh v. McCullough, R.I., 192 A.2d 437; ...
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