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  • Anna M. McCarthy and Noel McCarthy Her Husband v. Kroger Company, A Corporation, 385 F.2d 150, 3rd Cir. (1967)

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    A woman fell in the cart return area of a Kroger supermarket and sued for negligence. At trial, the jury found in favor of Kroger. The plaintiff appealed based on 1) exclusion of photographs of other cart areas, but the photos lacked proof of comparable conditions; 2) alleged errors in the jury instructions regarding fault, accident, and the store's duty of care, but the instructions accurately stated Pennsylvania law; and 3) claimed bias of the trial judge, but the record did not support this. The appellate court affirmed the district court's judgment in favor of Kroger.

    Original Description:

    Filed: 1967-11-07 Precedential Status: Precedential Citations: 385 F.2d 150 Docket: 16642_1

    Original Title

    Anna M. McCarthy and Noel McCarthy Her Husband v. Kroger Company, a Corporation, 385 F.2d 150, 3rd Cir. (1967)

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    A woman fell in the cart return area of a Kroger supermarket and sued for negligence. At trial, the jury found in favor of Kroger. The plaintiff appealed based on 1) exclusion of photographs of other cart areas, but the photos lacked proof of comparable conditions; 2) alleged errors in the jury instructions regarding fault, accident, and the store's duty of care, but the instructions accurately stated Pennsylvania law; and 3) claimed bias of the trial judge, but the record did not support this. The appellate court affirmed the district court's judgment in favor of Kroger.

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    5 views2 pages

    Anna M. McCarthy and Noel McCarthy Her Husband v. Kroger Company, A Corporation, 385 F.2d 150, 3rd Cir. (1967)

    Uploaded by

    Scribd Government Docs
    A woman fell in the cart return area of a Kroger supermarket and sued for negligence. At trial, the jury found in favor of Kroger. The plaintiff appealed based on 1) exclusion of photographs of other cart areas, but the photos lacked proof of comparable conditions; 2) alleged errors in the jury instructions regarding fault, accident, and the store's duty of care, but the instructions accurately stated Pennsylvania law; and 3) claimed bias of the trial judge, but the record did not support this. The appellate court affirmed the district court's judgment in favor of Kroger.

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    of 2

    385 F.

    2d 150

    Anna M. McCARTHY and Noel McCarthy, Her Husband,


    Appellants,
    v.
    KROGER COMPANY, a Corporation, Appellee.
    No. 16642.

    United States Court of Appeals Third Circuit.


    Argued September 29, 1967.
    Decided November 7, 1967.

    Hymen Schlesinger, Pittsburgh, Pa., for appellants.


    Herman C. Kimpel, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for
    appellee.
    Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.
    OPINION OF THE COURT
    PER CURIAM.

    The first named appellant fell in the cart return station area of defendant's
    supermarket. She was injured and sued defendant in this negligence action. The
    case was tried to a jury which found in favor of the defendant.

    Complaint is made of the exclusion from evidence of nine photographs of other


    supermarket cart return areas. There was no proof of comparable conditions,
    etc., which might have presented reasonable bases for their admission into
    evidence. They were properly denied admission.

    Alleged charge errors consist of the judge stating that "It is the law of
    Pennsylvania that merely because a person sustains injury, that does not
    necessarily mean that anyone is at fault or that anyone is entitled to collect
    damages from anyone else. The occurrence could be an accident in the true
    sense, something which merely happens without fault or negligence on the part
    of anyone." The court went on to state that it was necessary for plaintiff to

    establish that her injuries had been caused by the proximate negligence of the
    defendant. In the context of the proofs, we find no error in the reference to "true
    accident". Nor do we find any valid shortcomings in connection with the
    instruction to the jury that "* * * it is for you to determine whether the way this
    parking lot was laid out and constructed did constitute any undue danger or
    hazard to persons using the business premises of the defendant." We find also
    that the charge was adequate with respect to absence of a railing. Finally, the
    record fails to justify the contention that the conduct of the trial judge towards
    wife-plaintiff deprived her of a fair trial.
    4

    The judgment of the district court will be affirmed.

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