{ "id": 2854144, "name": "Elizabeth J. LEWIS, Plaintiff-Appellee, v. BARBER'S SUPER MARKETS, INC., a New Mexico Corporation, Defendant-Appellant", "name_abbreviation": "Lewis v. Barber's Super Markets, Inc.", "decision_date": "1963-06-24", "docket_number": "No. 7231", "first_page": "402", "last_page": "406", "citations": [ { "type": "official", "cite": "72 N.M. 402" }, { "type": "parallel", "cite": "384 P.2d 470" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "382 P.2d 181", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2855143 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/72/0184-01" ] }, { "cite": "61 A.L.R.2d 1", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "62 N.M. 79", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714125 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/62/0079-01" ] }, { "cite": "64 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5345858 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/64/0125-01" ] }, { "cite": "63 N.M. 179", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2777201 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/63/0179-01" ] }, { "cite": "67 N.M. 267", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714723 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/67/0267-01" ] }, { "cite": "71 N.M. 244", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5346567 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/71/0244-01" ] } ], "analysis": { "cardinality": 498, "char_count": 7588, "ocr_confidence": 0.676, "pagerank": { "raw": 2.400244320682326e-07, "percentile": 0.7988508210324231 }, "sha256": "b81b776fb5ee0805bb7b59a6409b81f4f04d6eda2675b9b621272969d2a242fc", "simhash": "1:694330b81a06b28e", "word_count": 1295 }, "last_updated": "2023-07-14T21:27:49.886466+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, C. J., and CHAVEZ, J., concur." ], "parties": [ "Elizabeth J. LEWIS, Plaintiff-Appellee, v. BARBER\u2019S SUPER MARKETS, INC., a New Mexico Corporation, Defendant-Appellant." ], "opinions": [ { "text": "MOISE, Justice.\nThe plaintiff was injured when she fell while shopping in the produce department of one of defendant\u2019s stores. Upon trial to a jury plaintiff was awarded $10,000.00 damages, and defendant appeals from the judgment.\nFour points were assigned for reversal, only three of which are here relied upon. Appellant in his first point claims error because of the trial court\u2019s failure to sustain defendant\u2019s motion for a directed verdict made at the close of the plaintiff\u2019s case, and again at the close of all the evidence. This essentially raises a question of whether sufficient substantial evidence was presented by plaintiff which when considered with all reasonable inferences flowing therefrom presented a prima facie case of negligence.\nAlthough so often stated by us as to hardly merit repetition, we nevertheless reassert that the question as to what constitutes due care in any given situation is, generally speaking, a question of fact for the jury. Mahoney v. J. C. Penney Co., 71 N.M. 244, 377 P.2d 663. We recognize, as equally of uniform acceptance, the rule that where the jury has considered the case and has in effect found negligence, this court in its review must consider the evidence in a light most favorable to support the verdict, and should not reverse unless convinced that there is neither evidence nor inference therefrom which will support the verdict. Padilla v. Winsor, 67 N.M. 267, 354 P.2d 740. One other rule of equal importance and universal acceptance which we note is that where, on evidence free from conflict, reasonable minds cannot differ upon the question of whether a defendant was negligent or whether such negligence contributed proximately to plaintiff\u2019s injury, the question is one of law to be determined by the court. Caldwell v. Johnsen, 63 N.M. 179, 315 P.2d 524.\nWith these rules in mind, we set forth the facts as proved. Plaintiff, while shopping in the produce department of one of defendant\u2019s stores, slipped and her knee hit the floor. She kept herself from falling to the floor by catching on to a counter with both hands. After the incident plaintiff looked down at the place where she had slipped and saw something mashed on the floor. She thought it was a green bean. Another witness testified that she saw something green on the floor and thought it was an avocado or something soft.\nNo additional proof was offered as to the facts surrounding the fall. However, plaintiff proved over defendant\u2019s objection that two ladies who shopped regularly in the store had seen vegetables on the floor of the store on previous occasions. One of the witnesses had shopped in the store three to five times a week during the two years the store had been open and had observed vegetables on at least four or five occasions. The second witness had shopped in the store twice a week or oftener since it opened. She had noticed apples, two ears of corn, potatoes and string beans on the floor around the vegetable counters and had on several occasions mentioned the condition of the floor to a manager of the store asking why the store, being new, wasn\u2019t kept cleaner. Defendant also calls attention to a statement of an employee of defendant to the effect that debris lying on the floor is something that is seen all of the time.\nConcerning the practices of the defendant, it appears a manager and assistant were present in the produce department except during rush hours when they helped in other parts of the store. The produce area was swept and mopped every morning, and was swept a minimum of four times a day and as often as five to ten times on busy days. Also, all employees were instructed to pick up any produce that fell on the floor, and did so.\nBased on the foregoing facts, does the case fall within the rule of Barakos v. Sponduris, 64 N.M. 125, 325 P.2d 712, and Mahoney v. J. C. Penney Co., supra, or is it controlled by Barrans v. Hogan, 62 N.M. 79, 304 P.2d 880, 61 A.L.R.2d 1, and Jimenez v. Shop Rite Foods, Inc., N.M., 382 P.2d 181?\nStated differently, the problem presented is whether in the light of the proof as outlined above, reasonable minds can differ on the question of defendant\u2019s negligence, indulging every reasonable presumption in favor of the verdict.\nThe distinction we note between the two lines of cases referred to above is simply that in one the proof established as a fact or permitted a reasonable inference that the \u201cmessy condition * * * was a continuing occurrence \u2014 in effect a pattern of conduct * * * \u201d whereas, in the other, no such proof was present or inference permissible. Plaintiff asserts with conviction that she has established a continuing \u201cmessy condition\u201d which clearly gives substantial support to the jury\u2019s verdict.\nWe cannot agree with her appraisal of the facts. True, the falling of vegetables to the floor was a daily occurrence. Indeed, it happened several times each day necessitating the sweeping at least four times, or as often as eight or ten times, and continual picking up. However, such facts in no way suggest a situation of the type present in Barakos v. Sponduris, supra, where garbage was carelessly dumped on the floor in an unlighted passageway leading to the rest rooms provided for customers, and was allowed to remain without being cleaned up. Also, the facts differ substantially from the situation present in Mahoney v. J. C. Penney Co., supra, where gum and sticky materials were known to fall on the floors and stairs continually, but no effort was made more than once a day to clear, the same for the protection of customers. We there held that a jury question was presented as to whether defendant was negligent.\nUnder the facts in the instant case, it appears that although it was in the nature of the operation that produce would fall to the floor, a continual program of cleaning was in progress to remove such material from the floor. There was no proof to the contrary. It is not necessary for us to decide if the evidence of produce on the floor on previous occasions was properly admitted and considered. In the view we take of the facts, that evidence did not purport to show that proper cleaning practices were not followed, and it was not sufficient to show a \u201cpattern of conduct.\u201d\nThis case comes clearly within the rule of Barrans v. Hogan, supra, where we find the following: \u201cTo say that the defendant did have knowledge that particles of food might fall on the floor at any time, is not sufficient to charge him with negligence as the cause of plaintiff\u2019s misfortune.\u201d Similarly, here, the fact that produce might and did regularly fall on the floor is not sufficient to establish actionable negligence. While this is not as clear a case of failure of proof of negligence as Jimenez v. Shop Rite, Inc., supra, we are satisfied that the rule there applied is applicable here.\nIt is not necessary for us to consider or discuss defendant\u2019s final point claiming error in the instructions.\nIt follows from what has been said that the court erred in permitting the case to go to the jury. The judgment is reversed and the cause remanded with instructions to set aside the judgment and enter judgment for defendant.\nIt is so ordered.\nCOMPTON, C. J., and CHAVEZ, J., concur.", "type": "majority", "author": "MOISE, Justice." } ], "attorneys": [ "Modrall, Seymour, Sperling, Roehl & Harris, Leland A. Sedberry, Jr., Albuquerque, for appellant.", "Oliver B. Cohen, Albuquerque, for appellee." ], "corrections": "", "head_matter": "384 P.2d 470\nElizabeth J. LEWIS, Plaintiff-Appellee, v. BARBER\u2019S SUPER MARKETS, INC., a New Mexico Corporation, Defendant-Appellant.\nNo. 7231.\nSupreme Court of New Mexico.\nJune 24, 1963.\nRehearing Denied Aug. 19, 1963.\nModrall, Seymour, Sperling, Roehl & Harris, Leland A. Sedberry, Jr., Albuquerque, for appellant.\nOliver B. Cohen, Albuquerque, for appellee." }, "file_name": "0402-01", "first_page_order": 434, "last_page_order": 438 }