ARK.] SAFEWAY STORES, -INC. V. MOSELY. 1059. • • .SAFEWAY STORES, INC.: V. WISELY. i-4360 . • opinion. deliyered July .6, 1936.: 1. APPEAL AND ERROIL—:-In testing correctness of court'S order deny-•ing appellant's motion for ari instructed . verdict, the Supreme Court must give to, the evidence its hjghest probative value in • , favor of appellee and indulge every inference reasonably deducible therefrom to' Snpport the finding of the. jury. 2. MASTER AND SEEI TANTWhere, ' in' an' iction by ah employee against his employer for damages:for .an 'injury sustained , when he stepped' on a: lettuee leaf.. alleged . to. have been , negligently dropped . on the floor by a fellow-servant, it was purely a matter of speculation as to how the lettuce , lef happened to be where it , was when stepped upon by . the'employee, it was held insufficient to show negligence on the Part of the fellow-Servant, and, there--fore, insufficient as a basis for judgment against the master. APpeal from Conway , Circnit Court; J 0. Ki4can-non, Judge on Echainge; reVersed. Roscoe R. Lynn and June P. Wooten,• for appellant. . Strait c6 Strait, for appellee., • BUTLER, : J. , W. J. Mosely, the appellee, was in .the employ of Snfeway ;Stores, Inc., as:a manager in charge of its store at.N.forrilton.,.IIe worked in the store-as any other . employee, but had general:supervision over its operation with:authority to issue, orders to the other ern: ployees and to require thenito perform their duties. On November 7, 1934, appellee was . injured by falling to the floor of the rear compartment of the store while engaged in carrying a sack of shorts weighing approximately one hundred pounds. .1Ie brought suit against his employe]:
-1060 SAFEWAY. STORES; INC. V. MOSELY : . [192 •o . recover dainages for his hijurY • onthe theorY• that it was 'enused by the negligence' Of a : f ellow-SerVant,. • • , • At the : concluSion 'of 'the , testirriony the' appellant moved for' an 'instructed 'verdict : This , mo tion 'was : overruled and 'ee . eptions' thereto dulk.saved: . The trial : re= suited in a verdiet nffid . jUdgthent inlaVor f the'apPellee from which this appeal is duly Prosecuted.' We find-it neceSsary' to''consider' 'Only 'the .cinestion raised by the appellant for an instrUctedverdict. In viewing the evidence adduced, we . must give to it its highest probative value in . favor of the appellee and indulge every inference rea'sonabV deducible , from the testimony lo support the finding . of, the iury. Gaster v. Hicks, 181 Ark. 299, 25 S. W. (2d) 766. . . . There isPractical4T'no 'diSpute . in thetestimony as to the essential . and material facts.• On the day , of appellee.'s injury, NoveMber 7,- 1934 i . the store was being served by three'eMployees the . apPellee,,Hetry Welter 'and -A. L. .l4rOWn. 'APpellee and ' Welter Were 'WOrking in the general grocery.department of, the. storeand )iirown was in charge , bf the moat department.. -.About • •9.:30 :a: m. a ens-terrier who conducted' a • sandwich shop came • to purchase a . nuMber of 'heads of lettuce.' Becanse of theicharacter of his,frade he' required lettuce. that Was . fresh and his 'purchases of this vegetable Were nsually made from the , icebox . located maSeparate 'compartment of the store, sop-arated. ,from . the general . grocery . store and i meat . market by a partition in . Which . there was an , Opening:' , When the customer came into . the store, 'appellee directed Henry. Welter tO Wait iniOn him. , Weiter'Went te the icel3ox and from . there sold him frOin eight to , ' a- &Zen head's a let-tuee, put- them intO a confainer of seme'kind; and de-lii; -ered it to the custoiner. 'Sonie time after . the sale of this lettuce, api p ellee Went into• the' storage rooni. at 'the rear ; of . the store where the ice-I:lint' was , loCated, .and; picking . up 'a 'sack shorth Weighing a himdied pounds; turned anci Started' to the front of the' store.. While•doing So . he stePlied 1.113oh : a lettuce leaf . lying' on the floor -and slipped and' fell, resulting in hiS ihjury: .The ' negligence -. of :the . fellOw l servant . . alleged is :that he 'Carelessly . 'and negligently dropped a lettuce leaf-on
ARK:] ' S. , iFEWAY STORES;. Ii cTC. MOSELX'% • '• 1061 thafleor !and 'carelesSlY•failed fa perform : his 'duty • in per-miffing' it to' fall'. and , remain . upon' the floor. 'The evi-- (knee on this' question is .. to 'the effect that Welter 'and Ray Ellison, the cilstomer,'*went to the . iceLbox fel- • the lett-Lice wherait'was 'delivered to Ellison' and'he'eame ant With-it : through -tho,frent' of . the store.; that afterwards, . perhaps a, half an :hour, appellee : stepped on a' lettuce leaf lying on1he floor about four feet &OM the ice-box; that he the' appellee) .; on opening' the store that morhing,' 'had §w'ept it'out . aild: at 'that 'tithe the- floor was free' of lettuce leaves. On the question as to'whetherar notWelter drop-. Ped the 'kande: leaf' : there i's no testiMeny whatever... Ap-pellee : admits , that • he' did not' See Welter : drop the leaf.. Welter himself did not testify that he dropped one, 'but 'stated that he did not deliver the lettuce to Ellison at the place where the shorts were stacked . or where the . appellee fell and 'that there 'Would have . been lie 00eaioil fer him to be in either of those places . when_making the delivery in question. He stated that it was not uncommon for lettuce leaves to%fall. and. Wirfain -oft the floav during the operation of the .store.and that he had- seen lettuce leaves thus. lying ;. • that if:he :was not then busy 'he . would 'pick thein un . ; that -at times he had-seen 'them an'the-floOt,and had net pieked'thein up. ,. :There iS no testithony, hoWever, to . ' the' effeCt thAt" 'Welter saw the . particulay leaf ...Which caused , appellee 's fall, or , .that it . was' lying,*here..he or Ellison might have dropped it, .or where he would -have been likely to see it while making the delivery . to Ellison 'Or in coming'out 'of the rear coMpartinent, froniWhiChthp • delivery was made. The evidence is to tha effecithaf ihe shorts' Were . StaciKed ab'ont eight feet' aWay the icebox, and that when appellee fell he was about' fenr.leet from.•the . 'Appellee t stated ;that it Wa.S. aai. k. in the back, room; .that there was, a sixtyWatt globe ,: in this 'room; but he 'did hot .§witch: it on . whën he Went far the . -shorts, land ! did .not.. See the lettuce , leaf- • Upon which Ihe stepped,':• ). . • 'We- think, -under the : eireu'rnstances of thi g 'cas'o, if "is purely : a Matter . 0f: speculation as to hoW the lettuce lea happened' taber at the plaCe it was When stepped upon.by The . apPellee i • an.d that theevidencef ails 'to shoWfany
1062 [192 ligence on the part of Welter in failing to observe it. The most that can be said is that his duty required him to pick up only those leaves he saw and not to make an inspection for other leaves which might be lying around. We therefore conclude that the evidence, when: given its greatest weight, wholly fails to establish any negligent act on the part of Welter as the proximate cause of the fall sustained by the appellee. The question as to the assumption of risk is therefore not necessary to consider as the verdict has no substantial evidence to support it on the question of negligence. As the case appears to have been fully developed, the judgment of the trial court will be reversed, and the case dismissed.
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