Clampett v. Shopping Bag Markets Inc.

California Court of Appeal Nov 25, 1938 No. Civ. 11927Published

Before: Wood, Crail

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Holding. The trial court erred in directing a verdict for the defendants because the question of whether the plaintiff was contributorily negligent in failing to observe a puddle in a dark passageway is a question of fact for the jury.

Issues

Whether the trial court erred in directing a verdict for the defendants on the ground of contributory negligence as a matter of law.
Whether the issue of a minor's contributory negligence should be submitted to the jury.

Disposition. reversed

Quotations verified verbatim against the opinion

“The question whether a plaintiff in an action like the present is guilty of contributory negligence is ordinarily a question for the determination of the jury.”

“it cannot be held that the court's action was proper in taking the matter from the consideration of the jury.”

“Under the evidence presented in the case before us we would be compelled to hold that, even if Marie Clampett had been of adult age, the issue of her alleged contributory negligence should have been submitted to the jury.”

Opinion

29 Cal.App.2d 410 (1938) MARIE CLAMPETT, a Minor, etc., et al., Appellants,

THE SHOPPING BAG MARKETS INC. (a Corporation) et al., Respondents.

Civ. No. 11927. California Court of Appeals. Second Appellate District, Division Two.

November 25, 1938. H. E. Gleason and John F. Poole for Appellants.

Donald E. Ruppe and Paul T. Howe for Respondents.

Wood, J.

This action was commenced to recover damages for injuries suffered by Marie Clampett when she slipped and fell in a passageway in a public market operated by defendants. The trial court directed a verdict for defendants and from the resulting judgment plaintiffs prosecute this appeal.

The rule governing trial courts in the matter of directed verdicts is well established. [1] The court may direct a verdict only when, disregarding conflicting evidence and giving plaintiff's evidence all the value to which it is legally entitled, indulging every legitimate inference which may be drawn therefrom, no evidence of sufficient substantiality to support a verdict in favor of plaintiff, if given, may be found. (Mairo v. Yellow Cab Co., 208 Cal. 350 [281 Pac. [412] 66].) Considering the evidence in the light of this rule, the record discloses that on the afternoon of August 17, 1936, Marie Clampett, a girl thirteen and one-half years of age, entered the market known as the Shopping Bag in the city of Los Angeles. Under directions from her mother, and as she had been accustomed to do for several years, she was carrying two milk bottles to be returned to the market. The weather was clear and bright as she entered. She passed down a main aisle and made a right angle turn to the left and took two steps along a passageway two and one-half feet wide. As she was about to place the bottles upon the counter she slipped and fell into a puddle of "mud, water and filthy slime", resulting in her injuries. Marie testified that the cement floor in the market had recently been washed; that she walked slowly; that she did not observe the puddle. "It grew very dark from the way it was outside, and it was --it was dark in there. It was not light. Well, I didn't quite observe it, sir. I didn't pay any attention, because I was just going to set my bottles down, and just as I went to set them down it all happened in such quick time that I didn't--I don't remember noticing the puddle, but I know it was there because when I got up I was all wet and the floor was all wet there." Another girl immediately behind Marie testified that "where Marie fell there was a pool of mud, water and filthy slime ... I said that the market was wet when we went in but not slimy in the other part of the market, just where she slipped".

Clampett v. Shopping Bag Markets Inc.

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