Lee v. H. L. Green & Co.

72 S.E.2d 33, 236 N.C. 83, 1952 N.C. LEXIS 494

• Court: Supreme Court of North Carolina
• Decided: August 22, 1952
• Status: Published

Opinions

JohnsoN, J.

Tbe evidence in this case when analyzed in the light of the controlling principles of law is sufficient, we think, to make out a prima facie case of actionable negligence for the jury.

Those entering a store during business hours to purchase or look at goods do so at the implied invitation of the proprietor, upon whom the law imposes the duty of exercising ordinary care (1) to keep the aisles and passageways where customers are expected to go in a reasonably safe condition, so as not unnecessarily to expose the customer to danger, and (2) to give warning of hidden dangers or unsafe conditions of which the proprietor knows or in the exercise of reasonable supervision and inspection should know. Ross v. Drug Store, 225 N.C. 226, 34 S.E. 2d 64; Watkins v. Furnishing Co., 224 N.C. 674, 31 S.E. 2d 917; Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E. 2d 199; Parker v. Tea Co., 201 N.C. 691, 161 S.E. 209; Bowden v. Kress & Co., 198 N.C. 559, 152 S.E. 625.

However, such proprietor is not an insurer of the safety of customers and invitees who may enter the premises, and he is liable only for injuries resulting from negligence on his part. Pratt v. Tea Co., 218 N.C. 732, 12 S.E. 2d 242; Bowden v. Kress & Co., supra.

Moreover, the doctrine of res ipsa loquitur does not apply to injuries resulting from slipping or falling on the floor of a store which has been oiled. Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E. 2d 536; Parker v. Tea Co., supra; Bowden v. Kress & Co., supra.

Therefore, it is not negligence per se to have an oiled floor in a store, or to apply oil to a floor, if it is applied in a reasonably prudent manner. The standard of care which the law requires of a storekeeper in oiling floors is that degree of care which persons of ordinary care and prudence are accustomed to use in oiling floors, having due regard both for the objects to be accomplished and the rights of those who are expected to frequent the store. Thus, in order for an injured person to recover in such a case, ordinarily there must be evidence sufficient to support the inference that from want of ordinary care on the part of the proprietor the floor was improperly oiled and left in an unsafe condition. Parker v. Tea Co., supra; Bowden v. Kress & Co., supra. See also : 38 Am. Jur., Negligence, Sec. 136, p. 798; 65 C.J.S., Negligence, Sec. 81, p. 589.

We think the evidence here, when viewed with the degree of liberality required on motion for nonsuit, was sufficient to sustain, though not necessarily to impel, a jury-finding of all the essential elements of actionable negligence: (1) That prior to the plaintiff’s fall the defendant had applied or caused to be applied upon and allowed to remain on its basement floor an oily floor dressing or covering of some type which was of a slick and slippery nature, and respecting which the defendant failed to exercise ordinary care by permitting it to be applied and to accumulate and remain on the floor in such quantities and condition, more in some places than in others and dry in some places and wet in others, so as to render unsafe passage along and about the aisles and display counters where customers and invitees were expected to go, thus creating a danger which in the exercise of ordinary care was not observable by the plaintiff but of which the defendant was chargeable with notice and failed to exercise due care to give plaintiff warning; and (2) that the plaintiff slipped and fell at a place in the aisle where, from want of due care on the part of the defendant, the oily substance had been applied in excessive quantity or left wet upon the floor without timely notice, and that the plaintiff’s fall and injuries resulted from the unsafe condition so created and existing, and were proximately caused by the improper and negligent manner in which the oily floor dressing was so applied or left by the defendant on the floor without notice to the plaintiff.

That the evidence offered below is sufficient to carry the case to the jury is supported by well-considered decisions of this Court, among which these seem to be closely in point: Bowden v. Kress & Co., supra; Parker v. Tea Co., supra; Anderson v. Amusement Co., 213 N.C. 130, 195 S.E. 386. Also, for numerous supporting decisions from other jurisdictions, see Annotations: 33 A.L.R. 181; 43 A.L.R. 866; 46 A.L.R. 1111; 100 A.L.R. 710; 162 A.L.R. 949.

In Parker v. Tea Go.., supra, the controlling facts are strikingly similar to those shown by the evidence in the instant case. In the Parker case, the plaintiff slipped and fell in a grocery store as she was walking toward the meat counter. The fall occurred on Monday morning after the floor had been oiled the previous Saturday night. The gist of plaintiff’s narrative of the occurrence is as follows: “Both feet slipped out from under me. . . . There was a damp place on the floor, — looked like oil. It appeared to be oil and had dried more in some places than in others. Where I stepped was one of the damp places. Some of the planks at this place looked practically dry, and then there were streaks on them that looked damp, as if it was damp with oil and it was more so in the place where I walked. . . . There seemed to be on part of the boards little streaks that didn’t seem to be perfectly dry. I could detect the exact point where I stepped and at that point there was a greater accumulation of oil. . . . My hose had a big spot of oil on them.” The evidence offered was held sufficient to support the inference that the floor was improperly oiled, and Bowden v. Kress, supra, was cited as controlling authority.

The defendant seeks to distinguish the instant case from Parker v. Tea Go., supra, on the ground that here there is no direct evidence, as in tbe Parker case, tbat tbe defendant bad caused tbe floor to be oiled. True, in tbe instant case, tbe plaintiff offered no direct testimony respecting when or by whom tbe alleged oily dressing was applied to tbe floor, or concerning tbe exact descriptive character of tbe substance found on tbe floor. Nor did anyone testify concerning tbe mode of procedure followed in applying tbe oil.

However, where, as here, a complaining party offers evidence tending to show a slick, oily floor condition, existing under circumstances pointing to some general type of previous oil treatment, showing fresh oil in some places and dry in others, thus indicating the application or accumulation of more oil in some places than others, we think tbe case may not be withdrawn from tbe jury simply because tbe plaintiff or her witnesses did not see tbe oil applied or know when or by whom it was applied or relate tbe precise details respecting tbe kind and quantities of oil applied or tbe mode of procedure followed in applying it. Where tbe facts in respect to these things are reasonably inferable from tbe plaintiff’s evidence, as in tbe present case, it is not imperative, under pain of suffering a nonsuit, tbat tbe plaintiff go further and indulge in tbe exploratory procedure of looking for bystanders who were present when tbe floor was oiled, or calling to tbe stand employees of tbe defendant who may have first-hand knowledge'of tbe method followed in applying tbe oil: Tbe essentials of a prima facie case do not require any such intensity of proofs nor precision as to details. 38 Am. Jur., Negligence, Sec. 333; 65 C. J.S., Negligence, Sec. 243, pp. 1068 and 1074; Hulett v. Great Atlantic & P. Tea Co., 299 Mich. 59, 299 N.W. 807; Benesch & Sons v. Ferkler, 153 Md. 680, 139 A. 557, cited in Bowden v. Kress & Co., supra.

In tbe instant case tbe existence of these elements of actionable negligence are reasonably inferable from tbe whole of tbe evidence. Pertinent as bearing thereon are these portions of tbe testimony of tbe plaintiff’s husband, who said be examined tbe floor: “I looked all over it. . . . all tbe way across it was greasy. ... In some places grease and smudges on tbe floor were heavier . . . than in others. ... In some places tbe oil or grease on tbe floor appeared to be dry. ... It appeared to be fresh at some spots and dry at others. . . . Tbe place where I observed my wife bad fallen was slick.”

Also, an examination of tbe facts in Parker v. Tea Go., supra, discloses tbat tbe direct evidence tbat tbe floor was oiled, as well as tbe details of tbe procedure followed in applying tbe oil, was introduced by tbe defendant after tbe plaintiff bad offered her evidence and rested her case, and it is apparent tbat tbe evidence so offered by tbe defendant was not of controlling or decisive importance on the question of nonsuit in tbe Parker case.

Factually distinguishable are the cases relied on by the defendant, chiefly among which are: Pratt v. Tea Co., supra; Fanelty v. Rogers Jewelers, Inc., 230 N.C. 694, 55 S.E. 2d 493; Barnes v. Hotel Corp., 229 N.C. 730, 51 S.E. 2d 180.

In Pratt v. Tea Go., supra, the evidence disclosed a greasy, dirty looking spot about 10 inches long and 7 or 8 inches wide. There was no evidence tending to show that the store floor had been oiled or that the spot was a part of or had its origin in any general type of oil treatment of the floor. Therefore, nothing else appearing, it was not inferable that the greasy spot was either (1) created by the defendant, or (2) had been there long enough for the defendant, in the exercise of ordinary care, to have discovered and removed it, or given warning of its existence. Thus, for want of these crucial proofs, the nonsuit below was aflirmed.

Similarly, in Panelty v. Rogers Jeiuelers, Inc., supra, the evidence disclosed that the plaintiff slipped on a slick spot or place on the terrazzo entryway outside the defendant’s store door. There was no evidence tending to show who, if anyone, had placed a foreign substance of any kind on the floor of the entryway. It was not disclosed how long the slick spot had been there, nor did it appear to be part of a general type of oil, wax, or like treatment. Hence, in the absence of evidence as to how long the slick spot had been present, no inference of. negligence on the part of the defendant was deducible from the single fact of a slippery spot on the terrazzo floor outside the defendant’s door.

In Barnes v. Hotel Gorp., supra, the plaintiff slipped on the marble floor in the hall entryway to the elevators on the third floor of the O. Henry Hotel in Greensboro. There, the nonsuit below was sustained for want of any evidence, direct or circumstantial, tending to show that “any unusual material had been used in cleaning or polishing the floor or that such material had been applied in an improper, unusual or negligent manner.” It also appeared that the plaintiff had been a regular guest of the hotel for about 12 years, and she testified that as she came out of her room to the elevator entrance “she looked at the whole area and saw nothing out of the ordinary.”

A number of decisions relied on by the defendant involve hazardous conditions which reasonably may have been produced by the act of a third party or weather conditions, or by other causes over which the storekeeper had no direct control — like puddles of loose oil or spots made by other foreign substances — under circumstances requiring the plaintiff to prove that the defendant proprietor was chargeable with notice of the dangerous condition. See Panelty v. Rogers Jewelers, Inc., supra; Pratt v. Tea Go., supra, and cases cited.

In the instant case, however, there is no such factual background. Here, the evidence is sufficient to support the inference that the hazardous condition complained of was created by or under tbe direction or sufferance of tbe defendant in connection with a general application of floor oil; therefore, if sucb permissive inference should be drawn by tbe jury, then it follows as a necessary corollary that knowledge of tbe hazardous condition so created by tbe defendant would be inferred. In sucb circumstances, it would be far afield to say that a defendant might by bis own act create a hazardous condition and then demand that one injured thereby should be required to prove tbe defendant’s knowledge of sucb condition. It is elementary in tbe trial of negligence cases that where tbe alleged dangerous condition is shown to have been created by tbe person claimed to be liable, no further notice to him is necessary. No one needs notice of that which be knows. 65 C.J.S., Negligence, Sec. 5, p. 354; Hulett v. Great Atlantic & P. Tea Co., supra; Bury v. F. W. Woolworth Co., 129 Kan. 514, 283 P. 917. What is here said is in accord with tbe rule of liability defined and applied in Pratt v. Tea Go., supra.

For tbe reasons stated, tbe judgment below is

Reversed.