Winn-Dixie Stores, Inc. v. Manning, WINN-DIXIE

• Decision Date: 11 July 1962
• Docket Number: WINN-DIXIE,Nos. 2451,2452,s. 2451
• Citation: 143 So.2d 339
• Parties: STORES, INC., Appellant, v. Gladys MANNING et al., Appellees.
• Court: Florida District Court of Appeals

Page 339

143 So.2d 339

WINN-DIXIE STORES, INC., Appellant, v. Gladys MANNING et al., Appellees.

Nos. 2451, 2452.

District Court of Appeal of Florida, Second District.

July 11, 1962.

Thomas C. MacDonald, Jr., and William T. Keen, of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for appellant.

John R. Parkhill, Tampa, for appellees.

KANNER, Judge.

By two appeals, appellant, defendant below, has sought review of a final judgment entered for appellees-plaintiffs pursuant to jury verdict in a slip and fall negligence action and of a separate judgment entered by the trial court taxing costs against defendant. The appeals have been consolidated for consideration by this court.

The plaintiffs are husband and wife. Purpose of the suit was recovery of damages for injuries asserted to have been sustained by plaintiff wife through a fall caused by stepping on a grape on the floor in a Winn-Dixie supermarket.

A pre-trial conference was held, and the subsequent pre-trial order specified, 'It is the plaintiff's theory of negligence in this case that the defendant was negligent in its operational procedure in the display and sale of grapes. The defendant denies this and alleges that plaintiff was guilty of contributory negligence causing her own injury.'

During trial motions for directed verdict were timely made by defendant but were denied. In connection with the motions, the trial judge stated, 'It think that under the Trusell case the only thing the Court can do is submit it to the Jury. It seems to me there is evidence here that the grapes were picked up and could fall off the table, and did fall off when picked up and they were not packaged. I will let the Jury settle the case.' The mentioned case was Trusell v. Food Fair Stores, Inc., Fla.App.1960, 122 So.2d 616.

After verdict for plaintiffs had been returned, motion was made by defendant that the verdict be set aside and judgment entered in accordance with its motions for directed verdict or in the alternative for new trial. The motion requesting new trial was abandoned by defendant at the hearing upon the motions, and the court denied the motion for judgment notwithstanding the verdict.

Defendant asserts the sole question here to be the sufficiency of the evidence to support submission of the cause to the jury.

The testimony adduced at the trial was that of plaintiff wife, the produce manager and store manager, respectively, of the supermarket in question. Plaintiff wife's testimony was that on the day of the accident she visited the store of defendant for the purpose of shopping and that, while walking down the aisle between the bins containing the vegetables and the tables upon which had been placed displays of different items, she slipped and fell. After he fall, she stated, she saw three or four grapes on the floor and a grape on her shoe heel and noticed some grapes 'stacked very high' on a table. She described the table as having a railing around it about two inches high and the grapes as being piled in loose bunches, the stack being approximately eight to ten inches above the rail in the center of the table, sloping toward and above the two inch rail. Plaintiff stated that no one was present to serve the grapes but that the customer was required to place the grapes in bags and take them to an employee of the store for weighing. She testified that the area wherein she fell was well-lighted so that the grapes would have been seen on the floor by her had she looked, that she did not see any grapes fall from the table onto the floor, did not know how they came to be there, and aid not know how long the grapes in question had been there. Plaintiff denied that there was a plexi-glass rail above the edge of the one which she had described and, responding to query, replied that she knew nothing of the store's operation.

The store's produce manager testified that the customers would sort through the grapes until they found a bunch that satisfied them and that during the handling, grapes frequently and easily came loose. He stated that inside the railing on the display table in question was a plexi-glass railing approximately four inches high and also indicated that on the day of the accident grapes were being sold from wall racks as well. The store manager testified that there is a six-foot aisle between the wall racks and seven tables, upon one of which the grapes were displayed and that if grapes did come loose, they would fall on the table.

Defendant's position is that plaintiffs in their arguments concernine the evidence, have pyramided inference upon inference in concluding that a case was made out for the jury. Defendant urges that the jury would have had to infer that (1) an employee of the defendant caused or permitted grapes to fall on the floor while replenishing a bin, (2) that such grapes on the floor created a hazardous condition, and (3) that this hazardous condition was the proximate cause of the injury.

On the other hand, plaintiffs' view as to the evidence is that it yielded deducible inferences from which the jury could have concluded that because of the arrangement and operation described, grapes came loose, fell to the...