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Smith v. First National Stores Inc.

Decided: April 13, 1967.

GEORGE H. SMITH, PLAINTIFF-APPELLANT,
v.
FIRST NATIONAL STORES, INC., A MASSACHUSETTS CORPORATION, DEFENDANT-RESPONDENT



Conford, Foley and Leonard. The opinion of the court was delivered by Foley, J.A.D.

Foley

In this negligence case plaintiff appeals from an adverse judgment entered upon a jury verdict of no cause of action. His motion for a new trial was denied by the trial judge. The appeal raises alleged trial errors.

Plaintiff was a business invitee in defendant's supermarket. He described the occurrence upon which the action is based as follows:

"I was shopping in the store and I had to go to the men's room and I went to a man who was stamping the prices on the bottom of cans * * * I asked him if I could use the men's room and he said yes and directed me to it.

I went up the stairwell, I went to the men's room. On the way down when I approached the top stair my foot slipped and my shoe caught on the molding and I put my left foot out. I did this with my right foot. I put my left foot out on the second stair to catch myself and it went off and I went down the stair on my back with my arms back to try to save myself and my forearms were damaged and I wound up at the bottom of the stairs."

There was evidence that the meat department of the store was about five feet away from the foot of the stairway. There was evidence that prior to the accident sawdust was commonly observed upon the stairway which, according to the store manager, "could have come from the produce department or it could come from the meat department." This

witness also testified that the purpose of the sawdust around the meat department was to "keep the meat floor from a sliding condition," and it was inferable that such sawdust would pick up meat or fat droppings. There was evidence also that the stairway was used by store employees to reach rest rooms where the employees changed their uniforms and kept their handbags and valuables. The manager testified that the employees used the stairway about seven or eight times a day, or a total of 180 times a day for all employees. It was circumstantially inferable that the presence of the sawdust on the stairway was substantially attributable to such use and, therefore, that any danger which may have inhered in the tracking of greasy sawdust from the meat department area was created by defendant's employees.

We leave aside the testimony which tended to establish that the molding on the top step was in a defective condition on the day of the accident and that such condition had long preexisted the occurrence. We likewise leave aside the testimony of plaintiff's expert which was to the effect that the treads of the stairway were substandard and dangerous because of their narrow width.

In dealing with the inferably greasy or slippery condition which, in whole or in part, could be found to have brought defendant to his injuries, the court charged as follows:

"Should you find that the plaintiff's fall was caused or partially caused by the foreign substance, that is, the grease or whatever appeared in the evidence, the defendant must have had actual notice of that condition and if not then the plaintiff must prove that this condition had existed sufficiently long enough for the defendant to have had constructive notice of it. Now, that's apropos of grease or any other substance that appeared in the evidence."

At the conclusion of the charge plaintiff's attorney immediately objected to the court's instruction relating to the necessity of a showing by plaintiff that defendant had either actual or constructive notice, citing Bozza v. Vornado, Inc., 42 N.J. 355, 360 (1964), wherein the ...


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