Powell v. DEIFELLS, INCORPORATED

112 S.E.2d 56 (1960)

251 N.C. 596

Margaret S. POWELL v. DEIFELLS, INCORPORATED.

No. 594.

Supreme Court of North Carolina.

January 14, 1960.

*58 McLendon, Brim, Holderness & Brooks and Hubert B. Humphrey, Greensboro, for plaintiff, appellant.

Jordan, Wright, Henson & Nichols and William D. Caffrey, Greensboro, for defendant, appellee.

MOORE, Justice.

The decisive question on this appeal is whether or not the court erred in granting the motion for nonsuit.

Store owners are not insurers of the safety of customers on their premises. Copeland v. Phthisic, 245 N.C. 580, 582, 96 S.E.2d 697, 63 A.L.R.2d 587. And where a customer slips and falls in the aisle of a store the doctrine of res ipsa loquitur has no application. Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 733, 12 S.E.2d 242. But "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 * * * unsafe conditions of which the proprietor knows or in the exercise of reasonable supervision and inspection should know." Lee v. H. L. Green & Co., 236 N.C. 83, 85, 72 S.E.2d 33, 34. But when an unsafe condition is created by third parties or an independent agency it must be shown that it had existed for such a length of time that defendant knew or by the exercise of reasonable care should have known of its existence, in time to have removed the danger or given proper warning of its presence. Hughes v. Anchor *59 Enterprises, 245 N.C. 131, 134, 95 S.E.2d 577, 63 A.L.R.2d 685; Brown v. Montgomery Ward & Co., 217 N.C. 368, 371, 8 S.E.2d 199.

It is our opinion, and we so hold, in the instant case that plaintiff's evidence makes out a prima facie case of actionable negligence. The floor was of asphalt tile, a substance impervious to water and slippery when wet. The manager of the store knew this. Because the floor was slippery when wet it was customary to put mats at the entrances and mop the floor with dry mops on rainy days. On the day plaintiff fell, it had rained all the morning and at times the rain was mixed with snow, facts of which defendant is in no position to deny knowledge. But on this day defendant neglected to mop the floor. The store had been open from two to three hours when plaintiff arrived. Customers had tracked in water. The floor was in a wet condition. When plaintiff fell there was water all around her and it extended back to the entrance. This condition was observed by the man in charge of the ambulance when he arrived. There is a reasonable inference that the water had begun to accumulate on the floor from the time the store opened for business. Indeed, this is borne out by the testimony of the clerk, Miss Collins. Defendant gave plaintiff no warning of the danger and took no steps to remove it. As to whether defendant's conduct under the circumstances constituted actionable negligence is a question for the twelve.

Flora v. Great Atlantic & Pacific Tea Co., 1938, 330 Pa. 166, 198 A. 663, 665, is quite similar. Plaintiff slipped and fell on a smooth linoleum floor where water and slush had been brought in on the shoes of customers. At two-hour intervals the floor was mopped and sawdust placed thereon. Plaintiff slipped at a place from which the sawdust had been swept about 55 minutes earlier but had not been replaced. In discussing the situation there presented the Court said: "* * * (W)e hold that it is not placing an unreasonable burden upon the owner of a store to take greater safeguards than were taken in this case to protect customers against falls * * * The floor of the store was covered with smooth linoleum which had, as one witness described it, `a slippery disposition.' * * * It was shown that it was defendant's practice in bad weather to strew either an antislip compound or sawdust on the floor, to prevent slipping. This indicates that defendant was aware of a floor condition which might cause injury to its customers. That this condition could have been obviated by comparatively inexpensive attention is too clear to require argument. * * * Slipping on wet linoleum is of such frequent occurrence that those who have linoleum on the floors of their stores, and who permit it to become and remain wet, cannot successfully plead that such a fall as the minor plaintiff sustained was not foreseeable."

Another case in point is Lyle v. Megerle, 1937, 270 Ky. 227, 109 S.W.2d 598, 599. Plaintiff slipped on melted snow and slush which had accumulated on the tile floor of a butcher shop. The Court sustained defendant's motion for a peremptory instruction. In reversing the ruling below, the Appellate Court said: "The snow had been melting throughout the day and many people were on the streets. The store had been open since 7:30 o'clock in the morning and the slush had been tracked in by customers. It was muddy and sooty. The accumulation on the tile floor was very slick. * * * The case is different from that line of cases where some object causing an injury to a customer had fallen or been placed upon the floor by a third person and had remained there momentarily or for so brief a time that the proprietor was not required to take notice of its presence, or he had had no opportunity to remove or guard against it. It is distinguishable also from the cases relied upon by the appellee where persons were injured through slipping on ice or slush on outside steps, or in entrance ways outside the storeroom, * * * The *60 smooth surface and impervious quality of tile makes the accumulation of such substance as described in this case a situation from which such an accident should well have been anticipated. It would be an extreme view to take that reasonable men could not have foreseen the possibility of a customer slipping on slushy snow on a smooth tile floor."

The holding in Flora and Lyle, supra, is the majority view. Cases factually and legally comparable are: Taylor v. Northern States Power Co., 1935, 196 Minn. 22, 264 N.W. 139; Laskey v. First Nat. Stores, Inc., 1945, 317 Mass. 624, 59 N.E.2d 259; Yeager v. Chapman, 1951, 233 Minn. 1, 45 N.W.2d 776, 22 A.L.R.2d 1260; Clark v. Lansburgh & Bro., D.C.D. of C.1941, 38 F. Supp. 729; Great Atlantic & Pacific Tea Co. v. McLravy, 6 Cir., 1934, 71 F.2d 396. For full discussion, annotations and exhaustive citations of authority see 62 A.L.R.2d 6-124.

The case of Robinson v. S. H. Kress & Co., D.C.E.D.N.C.1956, 137 F. Supp. 19, is distinguishable. This is a North Carolina case. Plaintiff slipped and fell on a wet terrazzo floor under circumstances somewhat similar to the case sub judice. The court held that there was insufficient evidence of notice to the defendant. But the court was acting both as judge and jury and conceded that there was probably a jury question involved.

As has been often declared by this Court, on a motion to nonsuit the evidence is to be taken in the light most favorable to the plaintiff and he is entitled to every reasonable inference to be drawn therefrom. Williamson v. Bennett, 251 N.C., 112 S.E.2d 48; Rickman Manufacturing Co. v. Gable, 246 N.C. 1, 4, 97 S.E.2d 672. And on such motion evidence erroneously excluded is to be considered with other evidence offered by plaintiff. Pinnix v. Griffin, 219 N.C. 35, 38, 12 S.E.2d 667.

The testimony of the witness Hutton relative to the condition of the floor 15 to 20 minutes after the accident was competent and should not have been excluded. It was corroborative of plaintiff's testimony and in light of the circumstances was admissible as substantive evidence. The weight was for the jury. It had been raining all morning, customers had been coming in and going out, the floor had not been mopped, only a short time had intervened between the accident and Hutton's arrival and there was no evidence of an increased use of the aisle by customers after plaintiff's fall. "Whether the existence of a particular state of affairs at one time is admissible as evidence of the same state of affairs at another time, depends altogether on the nature of the subject matter, the length of time intervening, and the extent of the showing, if any, on the question of whether or not the condition had changed in the meantime. The question is one of materiality or remoteness of the evidence in the particular case." North Carolina Evidence: Stansbury, sec. 90, p. 170; Gaffney v. Phelps, 207 N.C. 553, 559, 178 S.E. 231; Blevins v. Erwin Cotton Mills, 150 N.C. 493, 498, 64 S.E. 428.

The statement of the witness Collins that "there would have had to been a wet condition" was probably excluded on the ground that it was an opinion or conclusion of the witness. The statement of the witness was in response to an inquiry as to the condition of the floor prior to plaintiff's fall. Counsel for defendant had repeatedly objected to questions of this purport, there was considerable confusion, and the reason for excluding this line of evidence is not at all clear. Testimony bearing upon the presence or absence of water on the floor in the main aisle both before and after plaintiff's arrival was not only material but related to an essential element of plaintiff's case. Witness had already testified that customers had tracked in water. The floor had not been *61 mopped. When witness was finally permitted to whisper an answer to the court reporter she made the response above quoted. It is obvious that the response was instantaneous and "a shorthand statement of fact" to emphasize that the floor was wet. "The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence * * *." Watson v. City of Durham, 207 N.C. 624, 625, 178 S.E. 218, 219, quoting from Bane v. Atlantic Coast Line R. Co., 171 N.C. 328, 88 S.E. 477. See also State v. Harris, 209 N.C. 579, 580, 183 S.E. 740; Street v. Erskine-Ramsey Coal Co., 196 N.C. 178, 183, 145 S.E. 11; Kepley v. Kirk, 191 N.C. 690, 694, 132 S.E. 788; North Carolina Evidence; Stansbury, secs. 125 and 126, pp. 233-243.

The excluded evidence referred to in the two preceding paragraphs was given consideration on the question of nonsuit.

Defendant contends that the ruling of the court below should be sustained on the ground, if on no other, that plaintiff was contributorily negligent as a matter of law. We refrain from factual discussion in this connection. Suffice it to say that this is a matter upon which reasonable minds might arrive at conflicting conclusions. It is a matter to be resolved by the jury. Waters v. Harris, 250 N.C. 701, 707, 110 S.E.2d 283; Lyle v. Megerle, supra; Clark v. Lansburgh & Bro., supra; Yeager v. Chapman, supra; Great Atlantic & Pacific Tea Co. v. McLravy, supra.

The judgment below is

Reversed.