Bisceglia v. Cunningham Drug Stores

85 N.W.2d 91, 350 Mich. 159, 1957 Mich. LEXIS 262

• Court: Michigan Supreme Court
• Decided: October 7, 1957
• Docket: Docket 55, Calendar 46,764
• Status: Published

Opinions

Kelly, J.

(for affirmance). Plaintiff was injured as he slipped and fell on the floor of defendant’s drug store. At the close of plaintiff’s proofs the court granted defendant’s motion for a directed verdict because plaintiff had failed to prove defendant was negligent and, also, because plaintiff had failed to prove lie was free from contributory negligence. Plaintiff appeals.

Defendant’s drug store is located at the southeast corner of Woodward avenue and Congress street, in the city of Detroit, fronting on Woodward and •extending approximately, 70 feet to the east along ■Congress. There is an entrance on Woodward avenue and, also, an entrance on Congress street. A lunch counter extended along the north wall, running from the Woodward avenue entrance to the 'Congress street entrance. Counter and display racks were placed in the center of the store and an aisle extended from the front to the back on both the north and south sides of the store.

Shortly after 8:30 a.m. on July 1, 1952, plaintiff •entered the store through the Woodward avenue entrance and proceeded by way of the south aisle to the rear of the store; made a purchase at the drug •counter, and then proceeded down the north aisle to •exit through the same door by which he entered.

. Plaintiff testified that as he neared the front door he noticed a porter mopping the floor, with a bucket in the center of the aisle; that noticing same he paused momentarily and then stepped over the bucket. His testimony as to the events that followed is:

“Q. What did you do then?

“A. Took another step, very small.

“Q. You are indicating about a 6-inch step; is that what you did?

“A. Yes, probably. Then I saw an awful lot of water on the floor.

“Q. At this point now you are about a foot and a half from the bucket and you are about a foot and a half from the porter, is that right?

“A. Yes.

“Q. Now where did you see this water?

“A. The part of the area almost to the fountain and the porter was very wet, sloppy.

“Q. In other words, the area immediately in front of yon then was very wet, it was an area of sloppy water ?

“A. Yes, and on a tile floor.

“Q. And you saw that?

“A. Yes.

“Q. Then what did you do?

“A. Then I took — I felt I only had a few feet to go to the door, and I had taken my third or fourth step, and my left foot come from under me, and that was the last thing I remember until I came to in the Receiving Hospital.

“Q. In other words, when you took that fourth step, that was a step into the water that you saw?

“A. That was.

“Q. Is that correct?

“A. Yes, sir. Of course, I was only a few feet from the entrance to the door.”

Plaintiff does not claim, or prove, that defendant used an unusual or improper method of mopping the floor, or that the porter’s action in handling the mop in any way caused plaintiff’s injuries, or that a soap, or slippery substance of such a nature, was used to create an unusual or unexpected hazard.

There is no merit to plaintiff’s claim that defendant should have mopped the floor before the store opened. Plaintiff’s claim that defendant should have placed a sign or warning that the floor was being mopped is answered by plaintiff’s testimony that he was well aware of that fact.

The lower court did not err in holding that plaintiff failed to prove defendant was negligent.

The only comment necessary in regard to the question of contributory negligence is to direct attention to Jones v. Michigan Racing Association, 346 Mich 648, 654, wherein it was held:

“Similarly here, plaintiff is gnilty of the same neglect he charges to defendant. If defendant was guilty of negligence in ignoring the existence of a' condition of which it knew or should have known and which it should have foreseen would he dangerous to invitees, then plaintiff, who should have seen, as he did, and been aware, as he was, of its existence and' have known, as he said he did, that it was dangerous,, was equally guilty of contributory negligence for having ignored it and acting, as did plaintiff in Shorkey (Shorkey v. Great Atlantic & Pacific Tea Co., 259 Mich 450), in disregard of that danger.”

Judgment affirmed.

Dethmers, C. J., and Sharpe and Carr, JJ., concurred with Kelly, J.