Sears, Roebuck & Co. v. Geiger

167 So. 658, 123 Fla. 446, 1936 Fla. LEXIS 991

• Court: Supreme Court of Florida
• Decided: March 16, 1936
• Status: Published

Opinions

Whitfield, C. J.

This is an action to recover damages for personal injuries received by a customer while walking along an aisle open for, and used by, patrons in a department-store, by the customer’s clothing being caught by a portion of a bicycle rack extending into or near the aisle which caught her clothing and caused the customer carrying purchases in her arms to fall upon the rack and receive serious injuries to her person.

In such case where there is no substantial evidence adduced by the defendant or appearing in the evidence for the plaintiff, to sustain the plea of contributory negligence filed by the defendant as a bar to the action, the trial court will not be held in error for withdrawing such plea from the case after all the testimony had been presented.

In this case the customer had no occasion to anticipate danger from a protruding object or otherwise, in walking in the aisle of the store, and the mere fact that when she was injured she was carrying large bundles of purchases in her arms, does not show contributory negligence. She had a right to carry bundles and to assume that nothing was in or near the aisle to come in harmful contact with her clothing, and it is not shown that she was' warned of a possible danger or that she was in any way negligent while walking in the aisle. A store should be safe for customers, and where there is no warning or occasion to anticipate or to apprehend danger in using the aisles in the store, the customer is not required to he extra careful to look for dangers while walking in the store aisles.

There is no substantial evidence to justify an inference of contributory negligence to bar a reasonable recovery under the general issue, nor any evidence to show the plaintiff reasonably should have known of any danger to customers walking in the aisle or that the plaintiff negligently came in contact with an object of danger or that she had warning or cause to anticipate or to avoid an object of danger within the reach of her clothing as she proceeded along the usual aisle of a store open to the public. See Christopher Co. v. Russel, 63 Fla. 191, 58 So. 45 Ann. Cas. 1913C p. 564; So Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, D. R. A. 1916C, 1208; A. C. L. R. Co. v. McCormick, 50 Fla. 121, 52 So. 712; Fla. Motor Transportation Co. v. Hillman, 87 Fla. 512, 101 So. 31.

“It is not contributory negligence to fail to look out for danger when there is no reason to apprehend any.” Crosby v. Donaldson, 95 Fla. 365, 116 So. 231.

Affirmed.

Terrell, Brown and Davis, J. J., concur. Ellis, P. J., and Buford, J., dissent.