Opinion
No. 5767.
February 7, 1974. Rehearing Denied May 10, 1974. Writ Refused May 31, 1974.
APPEAL FROM CIVIL DISTRICT COURT, DIVISION "H", PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE OLIVER P. CARRIERE, J.
J. Terrell Heath, New Orleans, for plaintiff-appellee.
Charles C. Garretson, New Orleans, for defendant-appellant.
Before GULLOTA [GULOTTA], and GAUDIN and ZACCARIA, JJ., Pro Tem.
Plaintiff sustained a lumbar strain when she slipped and fell in defendant's store. According to her testimony her foot "went out from under her" and she fell flat on her back. As she was assisted to her feet her husband found a string beat clinging to the back of her dress. She was taken by police crash truck to Touro Hospital, examined and told to return home and apply heat to her back. She made three or four visits to Charity Hospital and had a number of prescriptions filled for pain reliever pills and muscle relaxants. After several months her back improved and she gradually became asymptomatic. The lower court awarded her $2500.00 for her physical pain and suffering together with her medical and drug bills and the cost of a heat lamp. Defendants have lodged their appeal.
The evidence produced by plaintiff indicates that the store was customarily maintained in an untidy manner. A number of witnesses, in addition to plaintiff and her husband, testified to the effect that the store normally had a dirty, cluttered floor. One of these witnesses was a former employee.
Defendant produced witnesses who testified opposite to plaintiff's witnesses. One lady who was in the store at the time of the accident said that she had called the attention of an employee to some spilled beans on the floor where plaintiff fell some moments before the accident and that the floor had been swept.
The trial judge decided for plaintiff. He was in the best position to determine the creditability of the witnesses. He chose to believe those of the plaintiff over those of the defendant. The record contains ample proof to sustain his position. Absent a showing of manifest error the findings of the trier of fact will not be disturbed.
The court has previously indicated that a victim of a slip and fall injury has a severe burden of proof. Fontanille v. Winn Dixie La. Inc., La.App., 260 So.2d 71.
In this instance the trial judge opined that said burden had been met. We find no error in his ruling.
Affirmed.