Cletro v. Valley Stores, Inc.

VALLÉE, J. Appeal by plaintiff from a judgment for defendant in an action for damages for personal injuries, tried by the court without a jury.

On September 4, 1950, defendant, Valley Stores, owned and operated a public retail market. Defendant Berg owned and operated the beverage department in the market. The beverage department consisted of an open space adjoining and to the left, as one entered the market, of the entrance and aisle which were common to the entire market. A counter for the beverage department was located from 2 to 3 feet to the left of the aisle running parallel to it. The counter was about 10 feet in length and 3 feet high. A beverage cooler was located at right angles to the counter at its end nearest to the market entrance. The cooler was about 3 feet high and extended lengthwise from' behind the counter up to the entrance of the market. Patrons entering or leaving the market through the main entrance walked past the cooler.

In the corner formed by the cooler and the counter nearest the aisle, Berg had placed a stack of cardboard cartons containing Coca-Cola. The cartons were in two layers; each layer consisted of three cartons of 12 bottles each and three cartons of 6 bottles each. The top of the two layers was about 14 to 15 inches off the floor. The cartons were stacked so that the bottom layer extended farther away from the counter and toward the aisle about one bottle more, than the top layer.

On September 4, 1950, plaintiff entered the market and purchased some soft drinks and cigarettes from Berg at the beverage counter. As she walked out of the market and was from 3 to 5 feet from the stack of Coca-Cola cartons, a 3-year-old child started to climb onto the cartons and at least one carton fell to the floor. One of the bottles of Coca-Cola exploded and projected a piece of glass into plaintiff’s foot.

[711]There was evidence that it is customary in public markets to stack cartons of Coca-Cola in the fashion they were stacked in Berg’s department on the day of the accident. Berg testified that this was the first time he had known of any carton being knocked over by a child in the store, and that none of the cartons had been knocked over on any previous occasion.

The court found that neither one of the defendants was negligent; that the “occurrence and any injury which may have resulted to plaintiff as a result thereof, was not proximately caused or contributed to by any carelessness or negligence on the part of” any of the defendants; and that “plaintiff has not sustained any injury, loss or damage as the direct or proximate result of any negligence on the part of” any defendants. Judgment was for defendants from which plaintiff appeals.