Davis v. West Shore Co.

McCOMB, J. This is an appeal from a judgment entered in favor of defendant in an action to recover damages for personal injuries. The judgment was predicated upon the granting of defendant’s motion for a judgment in its favor upon the ground that the opening statement of counsel for plaintiff failed to disclose any actionable negligence upon the part of defendant.

The record being viewed in the light most favorable to plaintiff, which we must do in reviewing a judgment predicated upon the granting of defendant’s motion for a judgment because plaintiff’s opening statement fails to disclose any liability upon the part of defendant, the material facts are:

After a jury was duly impaneled, plaintiff’s counsel made to the jury the following opening statement:

“Ladies and gentlemen of the jury, this is the case of Mrs. Davis, plaintiff, against West Shore Company, a corporation, wherein Mrs. Davis claims that she was injured upon the property of the West Shore Company on West Jefferson near the corner of Clinton avenue.

“We expect the evidence to show that Mrs. Davis, who resided in that neighborhood, went to this store in an automobile, got out and went into the grocery store and did a little shopping there; she came around the store—the front of the store to the east-—where her children had parked their car. She was going to her car and crossing the property of [222]the West Shore Company, as they admit in their answer. The portion of the ground that she was crossing was paved. We will show by the evidence it was level with the floor of the store, level with the sidewalk, level with the pavement in front of the little restaurant which was alongside of the grocery store, and that that was painted green. That when she came out of the store she turned the corner to go to her car, which was just south of the corner, crossing this green walk. There was a drop-off of some two or three inches, apparently buildings had been there at one time and had been removed—at least there were some indications of that. There was no indication at" all of" the drop-off from the direction in which she "was coming, and, from the other one you could see the drop-off. She lost her" footing at that particular place where the drop-off was and fell and was injured. She was under the care of physicians and had numerous treatments and was under treatment for a considerable time, and has had numerous X-rays and is even at this time suffering from the effects of the fall.