Goldsmith v. Mills

DOOLING, J.

Plaintiff-respondent Della Goldsmith brought an action to recover damages for personal injuries received as the result of a fall in defendant-appellants’ store. Judgment was entered on a jury verdict in favor of plaintiff for $6,000 and this appeal was taken therefrom.

Respondent, a woman of 85 years of age at the time of the accident, is the mother of Ivan Goldsmith, one of the appellants in this action. The other appellant is Robert Mills, who is a business partner of Ivan. On December 15, 1951, respondent was driven by her sister-in-law down to her son’s store for the purpose of doing some Christmas shopping. A cash register was located on a counter at the east side of the store. One or the other of the proprietors presided over the cash register to which sale slips and merchandise sold were taken, the cash registered and the merchandise then wrapped and delivered to the purchaser. During this process inspection sales slips from lingerie boxes and tissue paper from the hosiery were removed and deposited in a waste paper

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basket. The sales slips were about 2 inches by 2 inches and the tissue paper approximately 8 inches by 15 inches. On busy occasions some of these papers would fall to the floor in the vicinity of the cash register and remain there until picked up and placed in the waste paper basket or swept out in the morning by one of the proprietors.

Respondent was wearing old walking shoes with low rubber heels. She proceeded to the back of the store where she removed her hat and placed it in the space provided for those working in the store. She then walked toward the front of the store and fell while standing in front of the counter on which the cash register was located. She was looking at the merchandise displayed on the counters and therefore does not know the cause of her fall. She did not notice the floor after the fall either, but such failure is explained by the severe pain resulting from her injury. Her hip was broken and 11 months passed before she recovered sufficiently to return to her own home.

Mrs. Henderix, an employee of appellants at the time of the accident, testified that the floor in front of the cash register was “littered with papers” at the time respondent entered the store. The litter consisted of inspection sales slips from the lingerie boxes and tissue paper from the hosiery. She did not see Mrs. Goldsmith actually fall but immediately thereafter she noticed her sitting on the floor. She was located “right below the counter where the cash register was,” which was approximately where the papers were scattered.