HENRY MCHARGUE AND EVA MCHARGUE, HIS WIFE, APPELLANTS,
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., A MARYLAND CORPORATION, APPELLEE
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The plaintiffs appealed a directed verdict in favor of a grocery store after the plaintiff wife tripped over a protruding cardboard divider in an aisle. The court reversed, holding that the evidence was sufficient to establish a prima facie case of negligence and that the jury should have decided the case rather than the trial court directing a verdict for the defendant.
The appellate court held that the evidence was sufficient to establish a prima facie case of negligence and that the court erred in directing a verdict. The jury should have determined whether defendant's negligence in creating the hazardous condition proximately caused the injuries and whether the plaintiff was contributorily negligent.
“It is our view of the evidence that the jury could reasonably have concluded that defendant, by its employees, placed either the cardboard divider or the cardboard box on the display platform in such position as to permit it to protrude several inches out in the aisle where customers were required to walk”
Establishes that the evidence was sufficient to support a jury finding of defendant's negligence
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Join FLexlaw to unlock all legal intelligenceMrs. McHargue was leaving a Great Atlantic & Pacific Tea Company store after shopping when she tripped over a cardboard divider from a mayonnaise box …
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Plaintiffs have appealed a final judgment rendered upon a verdict directed by the court in favor of defendant at the conclusion of plaintiffs’ evidence. It is contended that the evidence adduced at the trial on behalf of the plaintiffs was sufficient to establish a prima facie case of negligence as alleged in the complaint, and that the court erred in withdrawing the case from the jury and directing a verdict for defendant.
The proof establishes that plaintiff wife, upon completing her shopping in defendant’s food store, checked her purchases at the check-out counter and then proceeded toward the front door of the building preparatory to leaving the premises. At the end of the aisle which terminated at the end of the check-out counter, plaintiff wife tripped over a piece of heavy cardboard which had originally been used as a divider in a cardboard box in which quart bottles of mayonnaise had been packaged. The cardboard divider was placed on a low level platform beneath a display of large bags containing charcoal, and extended several inches out into the aisle in which plaintiff was required to walk in order to leave the store. Plaintiff testified that her ankle struck the cardboard divider at a distance of only a few inches above the floor, causing her to trip and fall which resulted in the injuries for which she claims damages.
Defendant’s store manager was called as an adverse witness and testified in response to direct examination by plaintiffs’ counsel. In his testimony the manager stated that empty cardboard boxes were normally deposited in the front of the store near the check-out counter for use by the bag boys and customers in packaging purchases. He stated that it was his understanding that plaintiff tripped over a cardboard mayonnaise box which had been placed on the low level platform near the aisle. He testified that such empty boxes were brought to the front of the store by company employees but that he did not know which of the employees brought to the front of the store the mayonnaise box over which plaintiff tripped, or placed it on the platform where it was left to protrude several inches into the aisle. On cross-examination by defendant’s counsel the manager stated he was not positive that the cardboard box was placed on the platform by one of his employees, but that it possibly could have been placed there by someone else.
By its answer defendant pleaded general denial and contributory negligence.
It is our view of the evidence that the jury could reasonably have concluded that defendant, by its employees, placed either the cardboard divider or the cardboard box on the display platform in such position as to permit it to protrude several inches out in the aisle where customers were required to walk after leaving the check-out counter in order to reach the front entrance to the store; that the cardboard divider or box was positioned so close to the floor as to not be readily discernible to a customer having no obligation to closely scrutinize the aisle in order to detect and avoid such an unexpected hazard; that the protruding box created a *285dangerous condition resulting from the negligence of defendant which proximately caused the injuries suffered by plaintiffs for which they claim damages.1 Whether plaintiff wife was guilty of contributory negligence in failing to observe and avoid the obstruction in the aisle where she was required to walk was a question to be resolved by the jury and not by the court.2
It is our view that the evidence made out a prima facie case of liability as alleged in the complaint, and that the court erred in directing a verdict in favor of defendant. The judgment appealed is accordingly reversed and the cause remanded for a new trial.
CARROLL, DONALD K., and RAWLS, JJ., concur.
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Citator
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Winn-Dixie Stores, Inc. v. Miller, 220 So. 2d 680 (Fla. 4th DCA 1969)…luded that the box constituted a dangerous condition, the jury likewise could have concluded that the plaintiff was not contributorily negligent in failing to see the box. Compare McHargue v. Great Atlantic & Pacific Tea Company, Inc., Fla.App.1968, 209 So. 2d 283. The case relied on by the defendant, Frederich’s Market, Inc. v. Knox, Fla.1953, 66 So. 2d 251, is sufficiently distinguishable on its facts that it is not controlling. In our opinion the trial court committed no error in denying the motion for di…
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Winn-Dixie Stores, Inc. v. Burse, 229 So. 2d 266 (Fla. 4th DCA 1969)…be drawn, thus presenting a jury question, and that appellant has failed to meet his burden of demonstrating that the trial judge erred in denying the motion for directed verdict. McHargue v. Great Atlantic & Pacific Tea Company, Inc., Fla.App.1968, 209 So. 2d 283. Accordingly, we find no error and therefore, Affirm. WALDEN and McCAIN, JJ., and GONZALEZ, JOSE A., Associate Judge, concur.…
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State v. Gonzales, 354 So. 2d 949 (Fla. 1st DCA 1978)…Rule 4.6, F.A.R. by the Circuit Court of Alachua County, sitting as an appellate court, in an appeal from a county court. The rule does not provide for certification under these circumstances. American Express Company v. Habersin Camera Shops, Inc., 209 So. 2d 283 (3d DCA 1968). The question certified is not properly before us and is hereby DENIED. SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Food Fair Stores, Inc. v. Phoebe C. Trusell et vir, 131 So. 2d 730 (Fla. 1961)
- Olive G. Brisson v. W. T. Grant Co., 79 So. 2d 771 (Fla. 1955)
- McDERMOTT v. Alf C. Engstrom and Florence Engstrom, 81 So. 2d 553 (Fla. 1955)
- Mitchell v. Grapes, 161 So. 2d 537 (Fla. 3d DCA 1964)
- Conwell v. Zayre OF Miami, Inc., 161 So. 2d 537 (Fla. 3d DCA 1964)