Opinion
Wood, Ris & Hames, Eugene S. Hames, Denver, for plaintiff in error.
Frank A. Bruno, H. D. Reed, Denver, for defendant in error.
COYTE, Judge.
This case involves an action brought against the defendant below, Safeway Stores, Incorporated, by the plaintiff below, Rose Maria Babish, for injuries sustained by her as the result of a fall in a store owned by the defendant. A jury awarded plaintiff $50,000 damages and defendant now appeals.
In brief, the facts show that plaintiff entered defendant's store to purchase groceries and slipped and fell to the floor while in the produce section of the store. She complained of injuries sustained to her back and leg caused by this fall and initiated this suit.
As one of its assignments of error, defendant contends that the trial court should have granted either its motion to dismiss at the conclusion of plaintiff's evidence, or in the alternative granted its motion for a directed verdict. It maintains that plaintiff failed to establish negligence on the part of defendant and that plaintiff was herself guilty of contributory negligence as a matter of law.
Where such motions are presented by defendant in a case being tried to a jury, the trial court must review the evidence in the light most favorable to plaintiff, and then determine if such evidence is sufficient to support a verdict in her behalf. McGlasson v. Barger, 163 Colo. 438, 431 P.2d 778; Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43. Only in those instances where there is no evidence upon which a jury might justifiably base a verdict for plaintiff may the court enter judgment for the defendant as a matter of law. Sanderson v. Safeway Stores, Inc, 161 Colo. 271, 421 P.2d 472.
The evidence in support of plaintiff's position established that she entered defendant's store as a business invitee, which imposed upon defendant the duty of exercising reasonable care in safeguarding her physical welfare while in the store. King Soopers, Inc. v. Mitchell, 140 Colo. 119, 342 P.2d 1006. As she walked through the produce section inspecting the merchandise, she slipped and fell to the floor. The evidence indicated that she stepped on a 1/2-inch-long piece of celery lying in a pool of water. The water appeared to have come from dripping water hoses which were located beneath the produce bins and were used to spray the vegetables.
Further evidence indicated that an employee of defendant had been working in the produce section at the time sorting and arranging the various vegetables, and that the floor in the vicinity of the fall was strewn with carrot tops, lettuce leaves, and other bits of produce.
Defendant maintains that this evidence is insufficient to establish a prima facie case of negligence on its part because it does not establish that defendant either caused the celery to be on the floor, or that the celery had been there long enough to charge defendant with knowledge of its presence on the floor. Defendant urges that as plaintiff failed to establish either of these alternatives, she should be denied recovery in this action. We disagree.
A jury might reasonably have determined that the celery stock and pool of water combined to cause plaintiff to slip and injure herself. On this point the evidence indicated that the water came from one of defendant's hoses, and was not caused by an outside source. Furthermore, since there was testimony that defendant's employee was working in the area and that the floor was strewn with bits of vegetables, this evidence would justify a reasonable inference that defendant had knowledge of the presence of these substances, one of which caused plaintiff's injuries, and that by its failure to take corrective measures, the defendant became liable for the injuries caused thereby.
Taken as a whole, we conclude that the evidence is sufficient to support a finding that defendant failed to keep the floor reasonably clean when it, through its employee, knew or should have known of the presence of the foreign matter. Since the water hoses were part of the equipment used to display the produce, defendant would be responsible for the presence of water on the floor. Under all of these circumstances defendant could properly be found to have breached its duty to maintain reasonably safe premises for plaintiff's use, King Soopers, Inc. Supra; and, consequently, it was not error to deny defendant's motion to dismiss or its motion for a directed verdict.
It was also defendant's contention that plaintiff was contributorily negligent as a matter of law for failing to avoid stepping on the celery stock in this pool of water. Contributory negligence is generally a question of fact for the jury and only where the facts are undisputed and lead to one conclusion may the court take the issue from the jury and determine it as a question of law. Swanson v. Martin, 120 Colo. 361, 209 P.2d 917. Whether or not under these circumstances, plaintiff exercised that degree of reasonable care necessary to avoid falling was an issue for the jury, which determined that she was not guilty of contributory negligence. We find the evidence is sufficient to support such a finding.
Defendant also objects to certain instructions as given. Instruction No. 7 provided in part that:
'* * * the defendant was under a continuing duty to keep and maintain its premises and its facilities in a reasonably safe condition * * *.'
Defendant's objection here deals with the use of the word 'continuing,' which it maintains is error on the grounds that this word imposes on defendant a higher degree of care owed plaintiff than is actually the law. Defendant urges that its duty toward plaintiff is merely to maintain reasonably safe premises, but that the word 'continuing' implies that a greater duty is owed.
We do not agree with this argument. The jury was correctly informed as to the degree of safety required, namely that the defendant must keep '* * * its facilities in a reasonably safe condition * * *' In the total context of this instruction a fair and logical interpretation of the word 'continuing' would be to impose upon defendant the obligation to exercise reasonable care to maintain safe premises throughout the period in which the store is open to customers. Since the instruction was not of such a nature as to confuse or mislead the jury, it is not grounds for a new trial on this matter. Mendez v. Pavich, 159 Colo. 409, 412 P.2d 223.
Instruction No. 15 was objected to on the grounds it permitted the jury to award damages for future medical expenses and loss of earnings. Defendant contends that no evidence was presented to support such damages and that it was error to give the instruction.
On this point we find the evidence sufficient to support the instruction as given. Insofar as future medical expenses were concerned, there was evidence that plaintiff suffered 3% Permanent disability as well as certain intermittent pain caused by the injury. Under these circumstances it was not error to instruct the jury on future pain and medical expenses. CeBuzz, Inc., v. Sniderman, Colo., 466 P.2d 457.
Insofar as loss of earnings are concerned we note that plaintiff established that she lost her job as a result of her injuries and that she was forced to accept other employment paying two hundred dollars a month less than the job she had lost. In J. C. Penney Co. v. Brown, 155 Colo. 212, 393 P.2d 575, cited by defendant as authority for its position, the evidence indicated that the injured party actually received greater wages after his injury than before, which is clearly distinguishable from the fact situation presented here. Since the plaintiff has established a prima facie case of loss of earnings by her evidence of loss of employment caused by the injury, she is entitled to an instruction on this issue.
Defendant also assigns as error the trial court's refusal to grant defendant's motion to amend its answer made at the close of its evidence. The trial court has wide discretion in dealing with motions to amend. Rogers v. Funkhouser, 121 Colo. 13, 212 P.2d 497. It did not abuse its discretion in refusing to grant this motion.
Defendant next argues that the verdict for $50,000 awarded by the jury is grossly and manifestly excessive, and is based upon passion, prejudice or other improper considerations. Plaintiff's evidence indicated that the actual damages suffered to date of trial for medical expenses and loss of earnings amounted to approximately $16,000. Further evidence was presented tending to establish future medical expenses and loss of earnings, as well as pain and suffering, to account for the remaining $34,000 awarded.
It is only in those clear instances when the damages awarded bear no reasonable relationship to the actual or potential injuries suffered, that the reviewing court is entitled to set aside the jury's verdict as a matter of law. Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382. Under the facts as presented here, we do not find the award so clearly and grossly in excess of the damages sustained, as established by the evidence, as to merit reversal on this point.
Defendant next urges error in refusing to grant a new trial because of plaintiff's attorney's remarks made in closing argument, which defendant contends prejudiced the jury and went beyond the proper bounds of permissible comment. Particular comments objected to primarily concerned counsel's characterization of certain witnesses and institutions.
We find little merit to defendant's arguments that such comments obviously prejudiced and improperly influenced the jury. But, more important, we find this argument coming too late for consideration on appeal. During closing argument, defendant made but one objection to the opposing counsel's remarks, which objection was sustained. On its motion for new trial, defendant generally assigned as error improper remarks made by plaintiff's counsel, but did not state with particularity which comments were specifically objected to or why it was error to permit them to be spoken.
Even if objectionable, this issue is not properly before this court for review due to the failure of defendant to make timely objection. Weicker Transfer & Storage Co. v. Bedwell, 95 Colo. 280, 35 P.2d 1022.
As its final argument, defendant contends the trial court erred in permitting a particular medical bill for thirty-five dollars to be presented to the jury. As grounds for this particular allegation of error, defendant contends that the bill was not made for services rendered to plaintiff as result of her injuries, but was for services performed for plaintiff's attorney in preparing his case. On this point, however, we feel the evidence sufficient to support a finding that the primary purpose behind this report was to aid other physicians in the diagnosis and treatment of plaintiff's injuries. Although it might also have been used for other purposes such as were alleged by defendant, its use as an aid in the treatment of plaintiff's injuries justified the trial judge in allowing the bill to be introduced into evidence for the consideration of the jury.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.