Bessie Lee ("Mrs. Brown") and Willie Brown ("Mr. Brown"), Plaintiffs-Appellants, sued Spartan Department Stores and Atlantic Thrift Centers ("Spartan-Atlantic"), and various corporate management entities which owned or managed Spartan-Atlantic, in a personal injury action seeking to recover damages for injuries Mrs. Brown allegedly sustained as a result of a fall at a Spartan-Atlantic store in Dallas, Texas. The suit was based on diversity of citizenship. Following discovery, two trials were held. The first resulted in a mistrial; in the second, a jury awarded Mr. and Mrs. Brown $145,000 in damages for her physical pain, mental anguish, loss of earnings, physical impairment, disfigurement, his loss of comfort and society of his wife and past and future medical care. Spartan-Atlantic appeals, arguing that there was insufficient evidence to support a finding of negligence; that there was insufficient medical testimony that any negligence was a proximate cause of Mrs. Brown's alleged injuries; that the U. S. magistrate and trial court abused their discretion in deeming admitted certain admissions requested by the Browns but not answered by Spartan-Atlantic on the grounds of insufficient information; that counsel for the Browns made comments before the jury that were so prejudicial as to justify a new trial; and that there was no evidence of loss of Mrs. Brown's comfort or society by Mr. Brown to justify submission of that element of damage. Because we find no merit in the contentions of Spartan-Atlantic, we affirm the decision of the trial court.

Mrs. Brown went shopping at a Spartan-Atlantic store in Dallas, Texas, on September 18, 1975. As she left the store carrying several packages, she slipped and fell on the sidewalk outside the store in an area covered by a metal porch. She looked around and saw a slick spot on the sidewalk. Mr. Brown saw his wife fall and went to her aid. While helping his wife, he also noticed a small, damp, slick spot on the sidewalk where she had fallen.

Though Mrs. Brown suffered bruises or abrasions on her elbow, head, lower back and ankle, she did not go to a doctor immediately but went home where she treated her injuries, especially the one to her ankle, with a variety of home remedies. Mrs. Brown, a diabetic and prone to various medical complications including infections of the extremities, experienced swelling and pain in her left foot between September 18 and September 24, 1975. On September 24, 1975, Mrs. Brown was admitted to a local hospital complaining of continuing pain and swelling from the injuries she claimed she sustained at Spartan Atlantic. Most notably, her left foot was swollen and infected. She was seen by Dr. E. J. Mason, a surgeon, on September 27, 1975. His diagnosis was that Mrs. Brown had gangrene1 of the left foot and left lower extremity. Progressive worsening of the gangrenous condition necessitated amputation of Mrs. Brown's lower left leg by Dr. Mason on October 1, 1975.2

The Browns brought suit against Spartan-Atlantic, claiming that a dangerous condition existed at the Dallas store where Mrs. Brown fell. Specifically, the dangerous condition alleged was a growth of slick, mossy algae on the sidewalk which resulted from a constant slow drip of water which accumulated after a rain in a pond on the metal porch above the sidewalk. The Browns claimed this condition was known to Spartan-Atlantic, and that Spartan-Atlantic failed to correct the leaky metal porch or, in the alternative, to warn customers of the potential hazard of a slick sidewalk. The Browns further alleged that the fall at Spartan-Atlantic caused an injury which resulted in an infection, aggravation of Mrs. Brown's preexisting diabetic condition, gangrene, and ultimate amputation of her left leg.

Spartan-Atlantic defended, claiming that there was no dangerous condition, that it was not negligent in its store safety and that Mrs. Brown was contributorily negligent and had assumed the risk of any existing dangers. At trial, Spartan-Atlantic moved for, and the court denied, a directed verdict. After a jury verdict for the Browns, Spartan-Atlantic moved for a judgment n. o. v. and, in the alternative, for a new trial. Both motions were denied. Spartan-Atlantic appealed the denials of the judgment n. o. v. and new trial.II. PERTINENT DISCOVERY

During the course of discovery, the Browns requested thirty-one admissions3 from Spartan-Atlantic.4 Spartan-Atlantic stated, in its response of March 12, 1979, that it wasunable to truthfully either admit or deny such matters because they are not in possession of sufficient facts and information and after the exercise of all reasonable diligence and efforts as evidenced by the Affidavit of Wallace I. Brown filed herein have been unable to obtain such facts and information as would enable them to either admit or deny these matters pursuant to Rule 36(a), F.R.C.P. and state that Defendants have made reasonable inquiry and the information known or readily obtainable by them is insufficient to enable them to either admit or deny.

The Browns, pursuant to Rule 36(a),6 moved to have the court determine the sufficiency of Spartan-Atlantic's answer and requested that the answers be "deemed admitted" or that amended answers be served.

The motion, pursuant to 28 U.S.C. § 636(b) and Rule 2 of the Local Court Rules of the Northern District of Texas, was heard by a U. S. Magistrate. Counsel for Spartan-Atlantic did not appear at the initial hearing. After a review of the Requests for Admission and answer, the Magistrate ordered the admissions "deemed admitted."

Counsel for Spartan-Atlantic requested a rehearing and reconsideration of the Magistrate's order. After a hearing wherein counsel for both parties presented arguments and a further review of the Requests for Admissions, the Magistrate denied the request for reconsideration, affirming his earlier decision that the Requests for Admissions were deemed admitted. Spartan-Atlantic's appeal to the District Court for reconsideration of the Magistrate's ruling was subsequently denied.

After the deeming admitted of the fact that one or more defendants were aware of a wet, slick spot on the sidewalk and that no corrective action had been taken, the case proceeded to trial.

III. THE DEEMED ADMISSIONS AND EVIDENCE OF NEGLIGENCE

Spartan-Atlantic claims that there was insufficient evidence to support a finding of negligence by the store with respect to any failure to remove or warn of a slick substance on the sidewalk where Mrs. Brown fell. Because the question of sufficiency here is inextricably bound to the deemed admissions, the propriety of the magistrate's action will be discussed prior to a review of the sufficiency of the evidence.

The sequence of events leading to the involuntary admission of crucial statements and the statements themselves have been set forth in Part II of this opinion. At trial, counsel for the Browns read to the jury the admissions that one or more defendants were aware of, or had noticed, a slippery area and a wet area following a rain after other areas of the porch had dried from the rain and that no corrective repairs had been made. These admissions were critical as they, in effect, admitted a key element of negligence, knowledge of a particular condition, that the Browns would have, under Texas law, been required to prove in order to sustain their burden at trial. See J. Weingarten, Inc. v. Razey, 426 S.W.2d 538, 539 (Tex.1968).

Spartan-Atlantic admits that the standard of review of a decision of a trial court in a matter relating to discovery is whether the trial court abused its discretion in its decision. Save the Bay, Inc. v. United States Army, 639 F.2d 1100 (5th Cir. 1981); Hastings v. North East Independent School District, 615 F.2d 628 (5th Cir. 1980). It is not the responsibility of this Court to say it would have chosen a different order, to substitute our judgment; it is rather our responsibility to decide whether the district court could have entered the order which it did. Cf. Emerick v. Fenick Industries, Inc., 539 F.2d 1379 (5th Cir. 1976).

Spartan-Atlantic cites several cases where a district court decided not to deem admission but rather to order amended answers. Either order is within the scope of Rule 36.7 Here, where the magistrate (twice) and the trial court, on review, determined that Spartan-Atlantic's inquiry to obtain information relevant to the admissions had not been reasonable, its deeming of admission was well within the purview of its authority.

Indeed, where Spartan-Atlantic had stated, in the Wallace Brown affidavit, that it had located former employees, including Joe Sanders who testified at trial, it seems incomprehensible to this court that Spartan-Atlantic could not have, during the time from September, 1978 to the date of the hearing in September, 1979, formulated reasonable admissions or denials or at least demonstrated to the court what knowledge the former employees possessed. Its failure to so do clearly supports the discretionary decision of the trial court to deem the admissions.8

Spartan-Atlantic asks us, without benefit of the transcript of its hearing before the magistrate, to substitute our judgment for his. This we will not do.

Having determined that there was no abuse of discretion in the deeming of admissions, we now turn to the question whether there was sufficient evidence to support a finding of negligence.9 Spartan-Atlantic requests a judgment n.o.v. on this issue. Our review of its request is governed by the standard whether, given all the evidence in the case, a reasonable man could not arrive at a verdict contrary to Spartan-Atlantic. If such is the case, judgment n.o.v. is proper. If however, there is enough evidence that reasonable men might differ, the judgment should be denied. Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969).

A review of the evidence shows: that Mr. and Mrs. Brown observed a slick wet spot where she fell at Spartan-Atlantic; that the defendants knew a slick, wet spot existed and had failed to take corrective action or warnings to customers; that the proper conditions for algae growth existed under the metal porch; that algae grew, at least some times, under the metal porch after a rain; that it had rained two days prior to Mrs. Brown's fall; that the condition causing the algae growth, the leaky metal porch, existed before September 18, 1975. Spartan-Atlantic introduced evidence that no persons had reported falling prior to Mrs. Brown's fall and expert testimony that an accumulation of algae was unlikely. At the least, the admissions of Spartan-Atlantic and the testimony of the Browns and of the expert witnesses raise conflicting questions of fact which were reasonably within the province of the jury and from which Spartan-Atlantic's failure to exercise reasonable care in correcting or warning of the condition could be inferred.10

Spartan-Atlantic alleges there was insufficient evidence that the aggravation of Mrs. Brown's diabetes which resulted in the ultimate amputation of her leg was caused by her fall at its store. It claims a judgment n.o.v. is appropriate. The question again is whether there was enough evidence upon which reasonable men could disagree to warrant submitting the case to the jury. Boeing v. Shipman, supra.

Under substantive Texas law, controlling in this case, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), it was necessary for the Browns to prove that there was a "reasonable medical probability" that the injury at Spartan-Atlantic caused the amputation. Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.1968). Spartan-Atlantic argues that there was no, or at least insufficient, evidence on this point. Our review of the record shows that, while the evidence as to probability is not overwhelming, there is sufficient testimony by Dr. Mason that Mrs. Brown's fall caused the resulting complications and eventual amputation. The following dialogue occurred between the Court and Dr. Mason:

THE COURT: Well, let me ask a question. You have seen the Plaintiff a number of times, Dr. Mason. Do you have an opinion as to whether, solely from the fall, the accident that occurred on September 18, if she's had physical pain and suffering as a result of that fall?

THE WITNESS: I have an opinion.

THE COURT: All right. What is your opinion?

THE WITNESS: She has. She had pain at the time of the fall and prior to the time that-all the way up to the time when she had her surgery. And after her surgery she continued to have pain in the area, and anguish and suffering.

II Rec. 219.

This testimony, combined with other medical testimony and Mrs. Brown's description of her injury and resulting complications of swelling and infection, is sufficient to withstand a judgment n.o.v.11

Spartan-Atlantic argues that several statements made by the Browns' counsel were so prejudicial to its case that it must be granted the new trial which the trial court denied. Reversal of the trial court is only proper on a clear showing that it abused its discretion in denying the new trial. Martinez v. Food City, Inc., 658 F.2d 369, 372 (5th Cir. 1981). There is no indication of such abuse of discretion here.

Spartan-Atlantic claims the spector of defendant's insurance was injected into the case. While Dr. Mason did mention responding to a letter from an insurance company, there was nothing in the record to indicate he was referring to Spartan-Atlantic's insurance carrier or that the jury would have assumed that from the context of the testimony.

Additionally, Spartan-Atlantic claims that mention, by the Browns' counsel, of the dismissal of a malpractice suit by the Browns against Dr. Mason and by Dr. Mason's statement that he had seen Mrs. Brown "at the first trial" was prejudicial. Spartan-Atlantic neither explains to us why this was prejudicial nor cites judicial decisions holding that such attenuated, ambiguous statements justify a new trial. This argument is frivolous.

Finally, Spartan-Atlantic argues that comments by counsel during closing argument were prejudicial. The court below reviewed the record after having heard closing argument and being appraised of Spartan-Atlantic's objections and found no cause for a new trial. Our review indicates that the court did not abuse its discretion in determining that several isolated remarks, only one of which Spartan-Atlantic even objected to, were so prejudicial as to warrant a mistrial.

VI. DAMAGES FOR "LOSS OF COMFORT AND SOCIETY"

In the Court's charge to the jury in special issue number thirteen,12 it included as a possible element of damage Mr. Brown's loss of the comfort and society of his wife. Spartan-Atlantic complains that there was no evidence of such loss and that Mr. Brown said, at trial, that he sought nothing out of the lawsuit. In reviewing this allegation before submission of the case to the jury, the court stated:

THE COURT: ... I'm going to-I'll overrule the objection, for this reason: I heard him (Mr. Brown) say in substance that he wasn't looking for anything out of this lawsuit, but two things strike me: Number one, obviously, the man is not-is not very intelligent, that he's kind ofjust kind of ignorant, really, and so he may not really understand thoroughly the effect of his answers. But secondly, I think his testimony, itself, shows that he has lost some comfort and society by virtue of what he testified about how she used to be able to do this and she can't do that. And I think, just being realistic, he's entitled to have that submitted, so I'll overrule the objection.

III Rec. 249-250.

Because loss of comfort and society is a proper element of damage where there is evidence of the wife's inability to accomplish tasks subsequent to the injury which were performed before the injury, El Paso City Lines v. Dudney, 280 S.W.2d 303 (Tex.Civ.App.-El Paso 1955, writ ref'd n.r.e.), we believe the trial court's analysis of the testimony and submission of the element of damage was well within its discretion. There was no error by the trial court in submitting this element to the jury.

The verdict is, in all respects, AFFIRMED.