Orr v. Saylor

169 S.E.2d 396, 253 S.C. 155, 1969 S.C. LEXIS 165

• Court: Supreme Court of South Carolina
• Decided: August 27, 1969
• Docket: 18955
• Status: Published

Opinions

Brailsford, Justice.

The plaintiff, Mildred Orr, while wearing rubber soled sneakers on a rainy day, slipped near the entrance to the grease pit at Forest Lake Esso Service Center and fell onto the steps by which the pit was entered. She sued J. K. Saylor and G. W. Saylor, the owners of the station, for damages for pérsonal injury, and this appeal is by them from a judgment in her favor for $3,000.00. The only question involved is whether the court should have directed a verdict for the defendants because of the insufficiency of the evidence to establish actionable negligence on their part or because of plaintiff’s contributory negligence.

At about noon on the day in question, plaintiff’s auto-bile became lodged on a cement traffic divider at a shopping center on Forest Drive, near the City of Columbia. She walked, in the rain, across the highway to defendants’ station for assistance. After an employee of the defendants dislodged the automobile, she requested him to drive it to the station and to. inspect the underparts for damage. He drove from the shopping center, with her seated beside him, directly into the separately partitioned grease bay area of the station, where he parked the automobile over the grease pit.

Except for medical testimony, plaintiff was the only the driver got out of the car without saying anything to witness offered in support of her claim. She testified that her. She also got out of the automobile because she was uncertain whether the car was to be raised or whether he was “going down.” Quoting from her testimony:

“Q All right. Now, after you were in the station, go ahead and tell — starting from getting out of the car, go ahead and tell the jury what happened.

“A. Well, I got out of the car, and I heard a man saying something, so I walked to the front of my car, and when I walked to the front of the car, a fellow said something, and I said, ‘I don’t understand.’ Well, I was standing —like this is the pit here (indicating), I was standing here (indicating), and my foot and my eyes and all must have seen the grease at the same time, but the next thing I know I am down in the pit.

“Q. Now, you say your foot and your eyes saw the grease at the same time?

“A. By the time my feet got situated, my eyes couldn’t help' me.

“Q. In other words, you saw it too late?

“A. I sure did.”

She was again requested by her counsel to tell the jury “about when your foot slipped what happened.”

“A. When I walked around to the front of the car, I heard somebody talking, and I saw — I guess my foot hit the grease and I saw the grease at the same time. It was too late for me to stop. My feet just went.”

On cross examination, she stated, “I guess my foot hit grease, and the next thing I know, my head and my feet wouldn’t work together.”

Since any conflicts in the testimony have been resolved in plaintiff’s favor and all of the evidence must be viewed in the light most favorable to her, we refrain from commenting oh the testimony offered by defendants, except to say that it added no strength to plaintiff’s case.

Plaintiff’s testimony does not support the allegatation of the complaint that defendants had allowed grease to accumulate at the site of her fall. It leaves us completely in the dark as to where the grease came from, how long it had been there, how much there was, whether it was a smear or a blob, and whether the defendants had an opportunity in the exercise of due care to discover its presence and remove it.

In Gilliland v. Pierce Motor Co., 235 S. C. 268, 111 S. E. (2d) 521, a laundryman who slipped on a spot of oil while crossing a garage floor to make a delivery was denied recovery because he failed to sustain the burden of showing either that the oil was on the floor by the act of the defendant or that it had been there for a sufficient length of time to charge the defendant with notice of its presence. Assuming, without deciding, that defendants’ duty to keep their premises reasonably safe for use by their patrons extended to the grease pit area, plaintiff’s testimony in this case is similarly deficient.

Nor are defendants chargeable with negligence because their employee did not request plaintiff to leave the automobile before driving it into the grease bay and parking it over the pit. The simple visual inspection which he was about to make at her request would require only a short time, and he left her in a place of safety. He had no way of knowing that she would not recognize the obvious function of the grease pit and would leave the automobile against the possibility that it would be lifted into the air. He did not know that she had done so until she had already fallen. By her own testimony, she knew that she was in that area of the station where cars were taken to be lubricated, and was aware that she might expect to encounter grease or oil in this area. Hence, a warning to this effect by the employee would have been surplusage.

In his able dissent, Mr. Acting Associate Justice Weatherford urges with considerable logic that this court should re-examine its oft stated position with respect to the res ipsa loquitur rule. Perhaps, in an appropriate case, we should do so and consider whether we have heretofore, while denying the rule by name, followed it in substance in applying the circumstantial evidence rule. We are not, however, convinced that this case is factually appropriate for this purpose. Furthermore, we have not been requested to re-examine our position on this appeal, and the issue has not been briefed by counsel.

The circuit court erred in failing to grant judgment for the defendants by direction because of the insufficiency of the evidence to establish that the defendants were guilty of actionable negligence.

Reversed.

Moss, C. J., and Lewis and Bussey, JJ., concur. Wade S. Weatherford, Jr., Acting Associate Justice, dissents.