Wilson v. Pickels ( 1986 )

Benham, Judge.

Appellee Pickels filed suit against appellants, operators of Macon Mall, seeking damages for an injury she suffered in the mail’s rest room facilities. A jury awarded appellee $50,000, and judgment was entered thereon. Appellants bring this appeal and enumerate as error the trial' court’s denial of their motions for directed verdict and for judgment notwithstanding the verdict. We affirm.

The jury was authorized to find that when appellee, a college student, entered the Macon Mall rest room, the facility was so littered with debris that appellee had to step over piles of trash in order to gain access to a convenience stall. As she attempted to close the stall door, it tore from the hinge and fell to the floor with such force that it smashed appellee’s fourth toe on her left foot and separated the bone in the toe. Water flooded the rest room floor and prevented appellee from removing her shoe in the rest room in order to examine the toe. After the incident, the stall door was removed from the rest room and stored in the maintenance department alongside other similar doors. There was at least one other, door from this rest room that had been removed prior to removal of the offending door. This rest room had been the target of vandalism and it was common knowledge among mall owners that the vandalism consisted of destroying rest room stalls, ripping out toilets from the walls, and breaking sinks and other equipment.

The issues presented to the jury were whether the appellants had or should have had requisite knowledge of the defective condition of the door and whether the appellants were negligent in inspecting and maintaining the bathrooms. The evidence enunciated above was sufficient for the trial court to properly place the issues before the jury with proper instructions, and it was sufficient for the jury to have rendered a verdict favorable to appellee. The appellate court should not speculate as to what evidence the jury chose to believe or disbelieve. Williams v. Stankowitz, 149 Ga. App. 865 (256 SE2d 147) (1979). It is well settled that the question of notice is one for the jury (Public Nat. Ins. Co. v. Wheat, 100 Ga. App. 695 (9) (112 SE2d 194) (1959)), as are questions of negligence, diligence, contributory negligence, and proximate cause. Rossville Apts. Co. v. Britton, 178 Ga. App. 194 (6) (342 SE2d 504) (1986). The jury’s function is to weigh the evidence and ascertain the credibility of the witnesses and of their testimony. Scott v. Owens-Ill., 173 Ga. App. 19 (22) (325 SE2d 402) (1984).

On appeal, this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury’s verdict, and after the verdict is approved by the trial judge, the evidence must be construed so as to uphold the verdict even where there are discrepancies. Williams v. Stankowitz, supra at 866. We will not weigh the evidence and in fact are precluded from doing so. Strong v. State, 232 Ga. 294, 298 (206 SE2d 461) (1974); Dade v. Dade, 213 Ga. 533 (1) (100 SE2d 181) (1957). In considering the motions for directed verdict and for judgment n.o.v., this court must view the evidence in the light most favorable to the party who secured the jury verdict. Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 250 (329 SE2d 918) (1985).

“ ‘The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed. OCGA § 9-11-50.’ ” Nichols v. Purvis, 178 Ga. App. 826 (1) (344 SE2d 692) (1986). “In reviewing the overruling of a motion for a directed verdict, the proper standard to be utilized by the appellate court is the ‘any evidence’ test. [Cits.]” Speir v. Williams, 146 Ga. App. 880 (1) (247 SE2d 549) (1978).

Applying the evidence enunciated above in this case, we find no error in the trial court’s denial of appellants’ motions for directed verdict and for judgment notwithstanding the verdict.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Carley, Sognier, and Pope, JJ., concur. Deen, P. J., Birdsong, P. J., and Beasley, J., dissent.