Vice v. Great Atlantic & Pacific Tea Co.
Vice v. Great Atlantic & Pacific Tea Co.
Opinion of the Court
In this negligence action, plaintiffs appeal from the trial court’s entry, in favor of defendant, of judgment notwithstanding the jury’s verdict, GCR 1963, 515.2.
Judgment notwithstanding the verdict on defendant’s motion was appropriate only if the facts taken inferentially in favor of plaintiffs preclude judgment for plaintiffs as a matter of law. Huhtala v Anderson, 15 Mich App 693; 167 NW2d 352 (1969). Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965).
The evidence viewed in the light most favorable to plaintiffs was as follows: Frost and ice had been allowed to accumulate on two packages of frozen squash in defendant’s store. The two packages, which were stuck together, were held by defendant’s employee for Mrs. Vice’s inspection over the aisle where she was standing. While the packages were thus held, a conversation ensued which lasted from three to five minutes. Mrs. Vice saw the ice melting as defendant’s employee talked to her. She did not see moisture drop to the floor. As the convérsation ended and Mrs. Vice turned to
Included in the trial court’s instructions to the jury were Michigan Standard Jury Instructions 1.03 (on circumstantial evidence of negligence) and 1.04 (on jurors taking into account their ordinary experience and observations in the affairs of life). The jury found defendant negligent and awarded damages in the sum of $10,000.
The jury’s verdict reflects a finding that Mrs. Vice’s fall was caused by moisture in the aisle and that the source of the moisture was the melting frost. Given the evidence, this is more than mere conjecture. That there may have been other plausible theories of cause and effect does not justify setting aside the determination of the triers of fact. Ruemenapp v National Food Stores, Inc, 385 Mich 648; 189 NW2d 330 (1971).
Galloway v Sears, Roebuck & Co, 27 Mich App
The judgment of the trial court is reversed, with instructions to reinstate the jury’s verdict. Costs to plaintiffs.
Dissenting Opinion
(dissenting). I must respectfully dissent from the majority holding. It is my opinion that the trial judge properly granted judgment notwithstanding the verdict.
The sole evidentiary fact bearing on the possibility of defendant’s negligence was that there was frost on some squash being shown to plaintiff Maudena Vice in defendant’s store. As Mrs. Vice turned to leave the area she slipped and fell incurring injuries. An examination of the record reveals no testimony whatsoever to show any substance upon the floor to cause plaintiff to slip. Neither plaintiffs’ nor defendant’s witnesses produced any fact adducing a dangerous condition which defendant knew of or should have known of.
It is true that an inference can be raised that the defendant had actual or constructive knowledge of a dangerous condition, but there must be some evidence presented to the jury to support such an inference. Galloway v Sears, Roebuck & Co, 27 Mich App 348; 183 NW2d 354 (1970). Here no such evidence was presented.
I, therefore, vote to affirm.
Reference
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- Vice v. the Great Atlantic & Pacific Tea Company, Inc.
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