Tyler v. Martin's Dairy, Inc.

Hammond, J., delivered the opinion of the Court. The trial court directed a verdict for the defendant, Martin’s Dairy, Incorporated, in a suit by a patron, Mrs. Tyler, who had fallen over a curb marking the limit of the parking lot adjacent to the retail store of the dairy, and Mrs. Tyler has appealed from the judgment for the defendant for costs. The dairy business was conducted in a one-story brick building around which ran a porch. Shrubs were planted along the outside of the porch, and between the shrubs and the parking lot ran a walkway or pavement.

A curb several inches high ran along the walkway, dividing it from the parking area. About nine o’clock in the evening in October, Mrs. Tyler’s son and daughter-in-law drove her to the dairy, where she had not been before. Ordinarily there were flood lights which illuminated the parking area, but on this night the place was in the process of closing and all but one of the outside lights were off. There were patrons in the building and light shone through the windows.

The son parked the car with the front almost at the curb, a few feet to the left of an opening in the curb through which ran a path or walk to the front porch, from which one entered the dairy. The son got out the driver’s side, stepped over the curb and went on towards the entrance door. (He did not see the fall.) The daughter-in-law got out the other side of the car, walked a few feet straight away from the side of the car, then turned to her left onto the path that led through the opening in the curb and continued beyond the line of the curb a foot or so towards the front porch, where she paused. Mrs. Tyler followed her daughter-in-law part way, then ¹⁹¹ went back to the car to make sure the doors were locked.

She turned away from the rear door of the right side of the car and, in the words of the daughter-in-law, “rather than come the way she had the first time with me before she started back to lock the door Mom came diagonally across the hedge there and that is when she fell.” Mrs. Tyler, explaining her contention that she tripped over the curb, said that the second time she walked diagonally from the car towards her waiting daughter-in-law “and the glare from the inside of the building on my glasses and not being familiar with the place, I struck this object and fell.” Again she said: “I could see the great glare of light coming from the inside of the building and I could see the shrubbery and that is all I could see.” (On cross-examination she said: “I was blinded to the extent I couldn’t see.”) Then, she “walked diagonally from the car towards her—my daughter-in-law stood