Bader v. Great Atl. & Pac. Tea Co.

• Decision Date: 05 January 1934
• Docket Number: No. 138.,138.
• Citation: 169 A. 687
• Parties: BADER v. GREAT ATLANTIC & PACIFIC TEA CO.
• Court: New Jersey Supreme Court

169 A. 687

BADER

v. GREAT ATLANTIC & PACIFIC TEA CO.

No. 138.

Court of Errors and Appeals of New Jersey.

Jan. 5, 1934.

Appeal from Supreme Court.

Action by Agnes J. Bader against the Great Atlantic & Pacific Tea Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

PER CURIAM.

On appeal from the Supreme Court, in which the following per curiam was filed:

"The plaintiff, a business visitor, recovered a verdict in an action tried before the court without a jury. The injuries complained of were sustained as the result of a fall in defendant's store due to slipping on a spinach leaf or pea pod. Several witnesses testified, over objection, that on prior and subsequent occasions they had observed vegetable matter, such as spinach, grape skins, beans, and lettuce upon the floor. When a sidewalk in front of a store was habitually littered with vegetable refuse, and the street cleaning department had protested to the owner, a nonsuit in an action brought by a business visitor was not proper. Kalb v. Fisher, 139 A. 237, 5 N. J. Misc. 977, affirmed 105 N. J. Law 491, 144 A. 919. However, a proprietor of a store is not an insurer, but is merely liable for defects of which he knows, or defects which have existed for so long a time that, by the exercise of reasonable care, he had both an opportunity to discover and to remedy. Schnatterer v. Bamberger & Co., 81 N. J. Law, 558, 79 A. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139; Taylor v. Roth & Co., 102 N. J. Law, 702, 133 A. 386: Bodine v. Goerke Co., 102 N. J. Law, 642, 133 A. 295.

"Evidence is admissible of disrepair before and after an accident, Alcott v. Public Service Ry. Co., 78 N. J. Law, 482, 74 A. 499, 32 L. R. A. (N. S.) 1084, 138 Am. St Rep. 619, and also evidence of similar accidental injuries where it is sought to show disrepair and not structural defect. Crouse v. Stacy-Trent Co., 110 N. J. Law, 124, 164 A. 294.

"Testimony showing the habitual presence of vegetable refuse upon the floor of the store would be admissible. Kalb v. Fisher, 137 A. 237, 5 N. J. Misc. 977, affirmed 105 N. J. Law, 491, 144 A. 919. But mere isolated incidents of vegetable refuse upon a food store floor seems to us probative of nothing. There was no testimony on behalf of the plaintiff as to the length of time the piece of vegetable matter upon which plaintiff alleges she slipped was permitted to remain on the floor.

"The defendant, however, affirmatively showed that there were five daily sweepings of the premises, and that care was taken to remove refuse which might have fallen on the floor.

"The only testimony in the case is that of defendant's cashier that she had seen a customer throw on the floor the very pod on which plaintiff fell, 'a minute' before the accident. This testimony does not justify the verdict. A cashier cannot leave the cage where the money is kept, in order to pick...