Kroger Grocery & Baking Co. v. Taylor

When we view the testimony in the light most favorable to appellee, as we are required to do in determining whether it was error to direct a verdict against him, the following inferences and conclusions are fairly deducible from the testimony. Not appellee, but one Phillips, had superintending control over the local store where appellee and Berry were employed. After the stepladder ceased to be serviceable a ginger ale box was furnished to be used in its place. This box was made of heavy material and could be safely used as a substitute for the ladder, and was used with safety for that purpose. To serve a customer who wished to buy a tub, Berry went into a dark back room, and found an insecure apple box of about the same dimensions and shape as the secure box. Berry stood on this apple box, but was not tall enough to reach the tub, so he called on Taylor, who was taller, to remove the tub from the nail on which it was suspended. The boxes were so similar in size and appearance that the substitution of one for the other would not be observed without lifting the frail box or otherwise inspecting it.

The strong box had been in daily use, and safely used, and appellee was unaware of the substitution. The trial judge, no doubt, concluded that the jury would have been warranted in finding that it was negligence for Berry to make this substitution, thereby inducing appellee to use the substituted box without notice or knowledge of its insecurity. If the testimony was sufficient to support that finding, the trial judge had the right to find that he was in error in directing a verdict against appellee and in granting a new trial.

Appellee's authority was one of the questions of fact in the case. In any opinion the trial court did not abuse its discretion in holding that a case had been made for the jury. Without intending so to do, Berry set a trap for appellee. The apple box was sufficient to support his weight, but he was not tall enough, when standing on that box, to reach the tub.

Under the circumstances I think there was a question for the jury whether the substitution of the frail box for the strong one was negligence; and that it was also a question for the jury whether appellee assumed the risk of a danger of which he was not advised and could have ascertained only after inspection, and that the jury might have found that appellee was excused from a failure to make this inspection in view of the fact that he saw Berry use the box without injury, but used it unsuccessfully only because he lacked the height and reach to remove the tub from the nail.

For the same reason the question of appellee's contributory negligence was also a question for the jury.

The question here presented is not one of preponderance of the evidence. Upon a review of previous cases we said in the recent case of Hall v. W. E. Cox Sons,202 Ark. 909, 154 S.W.2d 19, that it is the duty of the trial court to set aside a verdict and grant a new trial if he concludes that the verdict is clearly against the preponderance of the evidence, and that when he had done so that action would not be reversed unless it also appeared that the trial court had abused his discretion in doing so. So, the question here is whether the trial court abused its discretion. It was said in the case of Blackwood v. Eads, 98 Ark. 304, 135 S.W. 922, (to quote a headnote) that "Trial courts have large discretion in the matter of granting new trials, especially upon the weight of the evidence, and the Supreme Court will not interfere with such discretion unless it be made to appear that it was improvidently exercised." That opinion then proceeds to state when this discretion has been improvidently exercised, and it did so by referring to Webster's New International Dictionary as follows: "``Improvidently exercised,' as used above, means thoughtlessly exercised or without due consideration. Webster, New Int. Dict.: ``Improvidently'."

in my opinion, an improvident exercise of discretion has not been shown, and I, therefore, dissent.