The opinion
Merits.
The' testimony as to how the accident happened is very conflicting. Plaintiff says that while she was standing in an aisle in the store looking at a hat, Mr. Maitre, the assistant manager, came down the aisle with a roll of screen wire in his arms; on passing her he dropped the wire which fell on her right foot, whereupon she exclaimed, “you hurt my foot.” She reached down and caught her foot and held it up. After a few more words between them during which time she secured his name and he secured hers, she left the store, limping on her foot. She met Ella Walker on the street, who assisted her in getting home and getting the doctor.
Plaintiff is corroborated in her statement as to the accident by Edward York, a colored man who was in the store at the time and saw the occurrence. His testimony is practically the same as that of plaintiff. Ella Walker met plaintiff on the street after she came out of the store and assisted plaintiff in getting on the street car to go home.
Two witnesses testified for defendants as to the way the accident took place, Mr. Maitre, the assistant manager, and Miss Kleinpeter, the clerk who was waiting on plaintiff at the time. Their testimony flatly contradicts plaintiff and York as to what happened. Maitre testified that he walked back in the store where a clerk, a Miss Eddy, had a roll of screen wire on the floor in the act of measuring off some ■of the wire for a customer, a Mr. Henry Wilson; that the wire started rolling down the aisle toward where plaintiff was standing'at the millinery counter and he then attempted to catch the wire and hollered “watch out,” whereupon Miss Kleinpeter stepped in front of the wire and stopped it with her foot. He denies that the wire struck plaintiff at all. He does say, however, that she became peeved and asked him to apologize to her, which he refused to do; that she asked him for his name, which he gave her, and he in turn secured her name, after which she left the store limping on her foot.' He followed her out on the street .and watched her for a short time; that she looked around and did not see him in the crowd and then began to walk as straight as ever. He says that the wire rolled about 30 feet before being stopped by Miss Kleinpeter. No one gave the wire a push; it just rolled itself. He says that he was about 35 feet from plaintiff when the wire was stopped by Miss Kleinpeter; that he went over to where plaintiff and Miss Kleinpeter were standing to see if any one was hurt; that plaintiff said to him that he did not apologize to her for the wire hitting her; that she then got his name and he got her name and she left the store. He further states that the wire was about 10 feet ahead of him when it was rolling down the aisle toward plaintiff.
Miss Kleinpeter corroborates Maitre in some parts of his testimony, but contradicts him in many other parts. She says that Maitre was -measuring off the wire for a customer when it started rolling, he said another clerk was measuring the wire; she says that the wire rolled about 3 yards, he said it rolled about 35 feet; she said the wire was rolling up, he said it was unrolling; he said that he was 10 feet behind the clerk when the wire started rolling, Miss Kleinpeter said he was stooping, measuring or helping measure the wire when it began rolling.
Neither the clerk nor the customer involved in the sale and purchase of the wire were called as witnesses, yet Maitre knew both their names and addresses, and no explanation was offered for their absence.
There can be no doubt that plaintiff did receive an injury to her foot that day somewhere because Dr. Brown treated her foot on that day.
The district judge was in better position to weigh the testimony than we are. He must have believed that plaintiff received an injury in the store of the Woolworth Company as she claims. There is certainly no manifest error in his finding of fact.
The lower court allowed plaintiff $513 as damages. We believe the same to be adequate under the circumstances.
Judgment of the lower court is hereby affirmed.