The parties appear here in the reverse position from that in which they appeared in the courts below.
The plaintiff, Mary A. Kinney, in her petition alleged that while she was a customer and an invitee of the defendant she slipped upon a piece of candy which the defendant had allowed to remain on the floor of its store, and because thereof fell and received injuries.
At the trial, she gave testimony tending to support the allegations of her petition and described the substance as either a piece of candy or chewing gum, of no appreciable thickness and of a diameter of about that of a silver dollar. She called witnesses who variously described the substance as the size of a "silver dollar bill" and of a diameter of two and one-half inches. She called a witness who testified that two days prior to the accident to the plaintiff, she slipped upon the same or a similar sub. stance, at about the same place in the store. *Page 463
A motion to direct a verdict was overruled, and at the close of all the evidence the motion was renewed and overruled, and the case was submitted to the jury under proper instructions. The jury rendered a verdict for the plaintiff, motion for new trial was overruled, and the Court of Appeals affirmed the judgment of the trial court.
Upon a review of the record, this court finds itself unable to say that there was no evidence tending to support the allegations of the petition, and, unless it were to adopt the practice of passing upon the weight of the evidence, it cannot do otherwise than affirm the judgments below, which is accordingly done.
Judgments affirmed.
ROBINSON, MATTHIAS, DAY and ALLEN, JJ., concur.
MARSHALL, C.J., KINKADE and JONES, JJ., dissent.