Opinion
No. 73-290
Decided April 30, 1974. Rehearing denied May 21, 1974. Certiorari granted July 15, 1974.
Action for personal injuries suffered by plaintiff when she was struck from behind by food cart in defendant's grocery store. Following jury verdict for defendant, plaintiff appealed.
Reversed
1. NEGLIGENCE — Contributory Negligence — Grocery Store Mishap — Evidence Insufficient — Create — Issue of Fact — Instructions to Jury — Error. In action for injuries sustained in grocery store mishap, where the only evidence relative to plaintiff's alleged contributory negligence was testimony by boy who was pushing food cart to the effect that as plaintiff was proceeding toward the door, she "turned her head slightly towards the left, and made a slight hesitation, and before I could stop my cart, it had run into her foot," such testimony is insufficient to create an issue of fact as to the reasonableness of plaintiff's conduct; therefore, the trial court erred in instructing the jury on contributory negligence.
2. Grocery Store Mishap — Boy — Unable to Stop — Food Cart — Conduct — Unreasonable — Matter of Law — Directed Verdict — Should Have Been Granted. In action for injuries sustained in grocery store mishap, where boy pushing food cart behind plaintiff testified that, when plaintiff hesitated, he was unable to stop the cart before it struck her and where he offered no evidence of circumstances which might excuse his failure to control the cart, the employee's conduct was unreasonable as a matter of law and a directed verdict on liability should have been granted.
Appeal from the District Court of the City and County of Denver, Honorable Saul Pinchick, Judge.
Balaban Lutz, Harlan G. Balaban, for plaintiff-appellant.
Wood, Ris Hames, P.C., Stephen E. Connor, Clayton B. Russell, for defendant-appellee.
Kitty Langdon (plaintiff) sued Safeway Stores (defendant) for damages resulting from personal injuries incurred in a mishap in one of defendant's supermarkets. After trial to a jury, judgment was entered on the verdict in favor of defendant, and plaintiff appeals. We reverse.
On November 26, 1969, plaintiff had completed her shopping in a Safeway store, and requested the assistance of one of the carry-out boys in taking here groceries to her car. Several sacks of groceries were loaded into a cart which defendant's employee pushed behind Mrs. Langdon as she proceeded toward the door. According to the employee, after walking six or eight feet, plaintiff hesitated slightly beside a display of dog food. Plaintiff was, at that moment, struck from behind by the cart, which pinned her left foot to the floor. As a result of the accident, plaintiff suffered serious injuries to her leg and foot.
At the conclusion of all testimony, plaintiff moved for a directed verdict on liability, which motion was denied. The issues of both negligence and contributory negligence were submitted to the jury, over plaintiff's objection. On appeal, plaintiff assigns error to the trial court's action in refusing to direct a verdict on liability, and in submitting the issue of contributory negligence to the jury.
In reviewing a motion for a directed verdict, an appellate court must determine whether the evidence, when considered in a light most favorable to the party against whom the motion is directed, compels the conclusion that reasonable men could not differ and that no evidence has been presented which would sustain a jury's verdict against the moving party. McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778; Nettrour v. J.C. Penney Co., 146 Colo. 150, 360 P.2d 964. This rule also applies to review of the action of the trial court in submitting the issue of contributory negligence to the jury.
Applying this standard to the testimony presented on contributory negligence, we agree with plaintiff's contention that the trial court erred in instructing the jury on that issue. The factual issue involved in determining contributory negligence is whether plaintiff exercised reasonable care, under the circumstances, to protect herself from injury. Burr v. Green Bros. Sheet Metal Inc., 159 Colo. 25, 409 P.2d 511. We must therefore determine whether the evidence presented permits the inference that plaintiff's conduct was not reasonably prudent.
[1] The only evidence relative to plaintiff's alleged contributory negligence was testimony by witness Ulasky, the boy who was pushing the cart, who testified that as plaintiff was proceeding toward the door, she "turned her head slightly towards the left, and made a slight hesitation, and before I could stop my cart, it had run into her foot." Defendant contends that this testimony, when coupled with plaintiff's testimony that she had shopped at this particular Safeway store for many years, creates an issue of fact as to the reasonableness of plaintiff's conduct. We disagree. Viewing the evidence in the light most favorable to defendant, the strongest permissible inference is that plaintiff slowed briefly as she left the store. There is no indication that she came to a full stop, much less an abrupt halt. Turning one's head to look at a food display in a supermarket casing a "slight hesitation" in one's forward motion is not unreasonable conduct. The trial court therefore erred in instructing the jury on contributory negligence.
[2] Plaintiff's second contention is that the trial court erred in refusing to direct a verdict on defendant's liability. A store owner and his employees must exercise reasonable care to protect customers from harm. Copeland v. Kaufman's, Inc., 157 Colo. 369, 402 P.2d 640; Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308. Defendant's employee testified that he allowed a distance of two or three feet between the cart and plaintiff. When plaintiff hesitated, as alleged by the employee, he admitted he was unable to stop the cart before it struck her. An employee exercising reasonable care in a busy supermarket should either follow at a greater distance when pushing a cart, or be alert enough to avoid collision with a customer. The employee offered no evidence of circumstances which might excuse his failure to control the cart. On the facts presented, we hold that the employee's conduct was unreasonable as a matter of law, and a directed verdict on liability should have been granted.
Since we hold that defendant's liability was established as a matter of law, and that there was no contributory negligence on the part of plaintiff, we need not consider the other error alleged by plaintiff.
The judgment is reversed and the cause remanded for a new trial on the issue of damages.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.