Safeway Stores, Inc., a Corporation v. Sadie A. Preston

269 F.2d 781

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 15, 1959
• Docket: 14728_1
• Status: Published

Opinions

DANAHER, Circuit Judge.

A jury’s verdict established appellee’s claim to damages as compensation for injuries due to a fall in the appellant’s store. Appellant argues that the District Court erred in its failure to direct a verdict in favor of the appellant or, at least, in its denial of appellant’s motion for judgment n. o. v. We must view the facts in the light most favorable to the appellee.

Appellee was at the checkout counter behind another customer who had bought canned goods and dry groceries. She der cided to pick up another item. As she started from the checkout counter toward a near-by shelf, she had taken her second step when she “stepped on something and skidded and my feet went up and I fell backwards.” Upon being assisted to her feet she looked to see what was on the floor and discovered “a skid-mark and there was a piece of some kind of vegetable * * *.” “It was all matted up and all dark and bruised * * *. There was nothing fresh about it.”

The checkout clerk, one Hill, called by the appellee, saw her slip and “have a hard fall,” some four or five feet from the checkout, counter. He examined the floor to see what appellee “had slipped on” and discovered a small piece of green onion top. The manager came forward and picked up the vegetable matter. Hill, some five to ten minutes earlier, had swept the floor, starting “at the beginning of the vegetable stand and * * * kept on sweeping all the vegetable leaves all around the store until [he] got behind [the] checking-out counter.* * *.” Then he gathered up some two handfuls of vegetable leaves including lettuce and green onion tops which he had deposited in a container behind his checkout counter. He swept down the aisle “right by” the checkout counter where customers walk to check out.

There is no dispute about the facts. Appellant insists that the trial judge should not have permitted the jury to draw the inference that the appellant’s clerk in the first place had negligently failed to sweep up the- piece of onion top, or had himself negligently dropped it as he sought to pick up two handfuls of vegetable matter from the floor or as the leaves were being swept into the receptacle, or even that he had overlooked the vegetable matter as he swept the lettuce leaves and the onion tops along the floor from the vegetable bin to the checkout counter. The trial judge ruled that the jury was entitled to draw such inferences from the- undisputed facts. Appellant had urged that some customer or even the appellee herself might accidentally have dropped the onion top. Appellant thus would frame the issue in terms of possible inferences from possible but undemonstrated facts. But there was no evidence whatever that any preceding customer had purchased vegetables, and clearly the appellee had not done so.

Appellant argues that this case is controlled by Brodsky v. Safeway Stores, 1945, 80 U.S.App.D.C. 301, 152 F.2d 677 and F. W. Woolworth Co. v. Williams, 1930, 59 App.D.C. 347, 41 F.2d 970. In the latter, plaintiff had made no effort to show how or by whom a dark spot on the floor had been created or how long it had existed. AH the evidence but her own described a clean, recently swept floor, devoid of trash, soap, or grease of any kind. Plaintiff testified only that she had no doubt her heel had been placed upon an oval-shaped spot, otherwise unidentified. Of course, she failed to establish the store-owner’s negligence.

In the Brodsky .case, again, there was no evidence that Safeway had been negligent “either in creating the alleged condition or in permitting it to continue.” [152 F.2d 677.] (Emphasis added.)

Here on the other hand, the clerk had swept lettuce leaves and onion tops directly from the area about the vegetable bins right down to his checkout counter. He had sought to retrieve all debris and had even picked up two handfuls, including green onion tops. It is not unreasonable to infer that he dropped at or swept to the very spot near his counter the green onion top on which the appellee slipped. Of course ;the appellant is not an insurer of the safety of its patrons while upon its premises, but in this case, the jury might well have concluded that an employee of the store-owner had negligently created the condition complained of.¹ We think the trial court properly let the jury decide the case.

In this view, we do not consider appellant’s assault upon the trial judge’s reference to Lavender v. Kurn, 1946, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916.² The Supreme Court has dealt fully with such statutory negligence actions in Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 507, 77 S.Ct. 443, 1 L.Ed.2d 493; and see Id., 352 U.S. at page 510, and note 26, 77 S.Ct. at page 451.

Affirmed.

1 . Cf. Washington Market Co. v. Clagett, 1901, 19 App.D.C. 12, 24; O’Dwyer v. Northern Market Co., 1904, 24 App.D.C. 81.

2 . But see Pennsylvania Railroad Co. v. Pomeroy, 1956, 99 U.S.App.D.C. 272, 279, 280, 239 F.2d 435, 442, 443, certiorari denied, 1957, 353 U.S. 950, 77 S.Ct. 861, 1 L.Ed.2d 859.