Valdes v. Karoll's, Inc.

• Decision Date: 26 April 1960
• Docket Number: No. 12829.,12829.
• Parties: Higinio Alvarez VALDES, Plaintiff-Appellant, v. KAROLL'S, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

277 F.2d 637 (1960)

Higinio Alvarez VALDES, Plaintiff-Appellant, v. KAROLL'S, INC., Defendant-Appellee.

No. 12829.

United States Court of Appeals Seventh Circuit.

April 26, 1960.

Lawrence P. Hickey, Burton H. Young, Sebastian Rivera R., Chicago, Ill., for appellant. Young & Hickey, Chicago, Ill., of counsel.

Donald N. Berchem, Michael J. Thuma, Berchem, Schwantes & Thuma, Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, SCHNACKENBERG and CASTLE, Circuit Judges.

HASTINGS, Chief Judge.

This diversity action was brought in the district court by Higinio Alvarez Valdes, a citizen and resident of Cuba, plaintiff-appellant (plaintiff), against Karoll's Inc., an Illinois corporation, defendant-appellee (defendant), seeking recovery of damages for personal injuries sustained by plaintiff caused by defendant's alleged negligence. The case was tried to a jury which returned a verdict of $7,500 in favor of plaintiff, and judgment was entered thereon.

During trial and at the close of plaintiff's evidence, and again at the close of all the evidence, defendant moved for a directed verdict in its favor. The trial court reserved its ruling on both motions. After judgment defendant moved, by way of motion for judgment notwithstanding the verdict, that the court rule on defendant's two motions for directed verdict, vacate the verdict of the jury and judgment entered thereon, and enter judgment for defendant notwithstanding the verdict of the jury. The trial court granted defendant's motion and entered judgment for defendant. It is from this judgment that plaintiff now appeals.

The trial court assigned as grounds for granting defendant's motions and entering judgment for defendant n. o. v., inter alia, that the "evidence and the manifest weight thereof clearly failed to show that the defendant was guilty of any causal negligence"; that "plaintiff failed to prove by a preponderance of the evidence that the defendant was guilty of negligence"; and that plaintiff failed to prove his freedom from contributory negligence. Plaintiff urges that the trial court erred in substituting its judgment for that of the jury.

The test to be applied here is whether in the record before us there was sufficient evidence of defendant's negligence and plaintiff's freedom from contributory negligence to warrant the submission of those questions for determination by the jury.

It is well settled that in reviewing the ruling of a trial court on a motion for judgment notwithstanding the verdict, the standards required by that motion are the same as those raised by a motion for a directed verdict. Montgomery Ward & Co. v. Duncan, 1940, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147. We must determine whether the evidence justifies submission of the case to the jury. Lambie v. Tibbits, 7 Cir., 1959, 267 F.2d 902, 903. Such a motion should be denied "where the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions." Smith v. J. C. Penney Company, 7 Cir., 1958, 261 F.2d 218, 219. We have reiterated these rules in the two recent cases of Kropp Forge Company v. Globe Indemnity Corporation, 7 Cir., 275 F.2d 539, and Hardware Mutual Casualty Company v. Chapman, 7 Cir., 1959, 272 F.2d 614.

We have examined the record and find that testimony most favorable to plaintiff describes the following circumstances surrounding the accident in question. Plaintiff, 66 years of age, had arrived in Chicago, Illinois, as a visitor from Cuba en route on a tourist excursion through the United States and Canada. He did not speak or understand the English language. On the morning following his arrival, plaintiff was walking north on State Street and saw a shirt displayed in the show window of defendant Karoll's Men's Store. He entered the store for the purpose of considering the purchase of the shirt.

Defendant's retail store, a men's clothing establishment, is located at 36 North State Street, at the southwest corner of State and Washington Streets in Chicago. The east entrance into the store is a revolving door on the State Street side. The diameter of the door is six feet, six inches. An aisle in the store extends westward from the opening of this door. Immediately inside this revolving door a stairway in the store descends at a right angle to the south of the door opening. The top of the stairwell is one foot ten inches from, and to the south of, the door opening. This would be to the left of one entering the store through the revolving door. The inward projection of the revolving door extends about one-fourth of the way across the width of the stairway. Show windows displaying defendant's merchandise face on...