S. H. KRESS & CO.
Darnell, Robertson & Holesapple, of Tucson, attorneys for appellant.
Richard H. Chambers, of Tucson, attorney for appellee.
De Concini, Justice. La Prade, C. J., and Udall, Stanford, and Phelps, JJ., concur.
De Concini, Justice.
From a $ 5,000.00 judgment as a result of a jury verdict in favor of Maude Evans, plaintiff, the defendant S. H. Kress & Company appeals. The facts briefly stated are, that on October 30, 1941, the plaintiff while walking in the store of the defendant located in Tucson, Arizona, either slipped and turned her ankle or turned her ankle and fell to the floor. She was seriously injured by having her hip fractured, and a resulting "foot drop." She spent eight weeks in the hospital and was on crutches for seven months. The only point in dispute was the condition of the floor, i. e., was it in a safe condition or in a slippery condition at the place where the plaintiff fell?
Defendant makes two assignments of error, but advances argument only in favor of the first assignment. Which assignment is as follows:
"The court erred in denying defendant's Motion for Directed Verdict at the close of plaintiff's case, and at the close of the entire case, and in denying defendant's Motion for Judgment Notwithstanding the Verdict, for the following reasons:
"A. The jury's verdict and the judgment rendered pursuant thereto were contrary to the evidence in the case, and there is insufficient evidence to sustain the same."
The abstract of record discloses no motion for a new trial was made and counsel
for defendant stated at the time of argument [69 Ariz. 367] on this appeal, that they made no such motion because of the moderate size of the verdict. Section 21-1703, A.C.A.,1939, provides:
"Orders, rulings, and evidence reviewable. -- Upon an appeal from a final judgment the Supreme Court shall review any intermediate order involving the merits and necessarily affecting the judgment, and all orders and rulings assigned as error, whether a motion for a new trial was made or not. If a motion for a new trial was denied, the court may, on appeal from the final judgment, review the order denying the motion, though no appeal be taken from the order; on an appeal from a final judgment the Supreme Court shall not, however, consider the sufficiency of ...