Brown v. Montgomery Ward & Co.

• Decision Date: 10 April 1940
• Docket Number: 309.
• Citation: 8 S.E.2d 199,217 N.C. 368
• Parties: BROWN v. MONTGOMERY WARD & CO.
• Court: North Carolina Supreme Court

8 S.E.2d 199

217 N.C. 368

BROWN v. MONTGOMERY WARD & CO.

No. 309.

Supreme Court of North Carolina

April 10, 1940

This was an action for damages for personal injury due to a fall in defendant's store, alleged to have been caused by defendant's negligence.

Plaintiff's evidence tended to show that about 1 P. M., February 1, 1939 he and his wife were prospective customers in defendant's department store in the City of Hickory, on the second floor in the furniture section. While plaintiff's wife was engaged with one of defendant's salesmen in examining some rugs, and plaintiff was looking at other articles in another part of the room, plaintiff started walking toward his wife in response to her call, when his foot slipped on some grease on the floor and he fell, sustaining injury. It was observed after his fall that there was grease or oil on the floor covering a space of ten or twelve inches, and that the grease appeared to be coming from underneath a washing machine located on a small platform six inches from the floor. The grease or oil appeared to be dripping from the washing machine onto the platform and running off on the floor, forming a puddle. The place was not well lighted and plaintiff did not see the grease on the floor before he fell. Over objection of defendant, plaintiff was permitted to testify that shortly after he fell he heard defendant's salesman, head of rug or furniture department, speaking of the grease on the floor, say, "It is the washer leaking again."

Defendant's evidence tended to show that there had been no grease or oil or other substance on the floor immediately before plaintiff fell, and that after he was discovered to have fallen there was, at the spot, kerosene oil on the floor; that there was also found at the same time kerosene oil on the wringer post of the washing machine whence it had run down to the platform, but nothing to show where the oil had come from that no kerosene was used or kept on or about the washing machine, or in that department; that the heavy packing oil in the washing machine was not fluid enough to run or drip, and was enclosed in the casing of the machine, bolted and sealed with no crack or seam. The washing machine was new and was being exhibited for sale. The place was well lighted. Plaintiff previously had been employed by defendant in one of its stores in another state.

Issues of negligence, contributory negligence and damage were answered by the jury in favor of the plaintiff. From judgment on the verdict, defendant appealed.

Theodore F. Cummings, of Hickory, for appellant.

Whitlock, Dockery & Shaw, of Charlotte, for appellee.

DEVIN Justice.

The duty of proprietors of buildings with respect to invitees on their premises has been frequently stated in the decisions of this court (Bowden v. Kress & Co., 198 N.C. 559, 152 S.E. 625; Anderson v. Amusement Co., 213 N.C. 130, 195 S.E. 386), and in those of other jurisdictions. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132. The concensus of these authorities is that the occupant of premises to which others are invited to come for business or pleasure owes to such persons the duty to exercise due care to keep the premises in a reasonably safe condition and to give warning of any hidden peril. The proprietor, however, is not an insurer of safety, and, when claim is made on account of injury caused by some article or substance on the floor along and upon which customers may be expected to walk, in order to justify recovery it must be made to appear that the proprietor either placed or permitted the harmful substance to be there, or that he knew or by the exercise of due care should have known of its presence in time to have removed the danger or given proper warning of its presence. Fox v. Tea Co., 209 N.C. 115, 182 S.E. 662; Cooke v. Tea Co., 204 N.C. 495, 168 S.E. 679; Parker v. Tea Co., 201 N.C. 691, 161 S.E. 209; Robinson v. Woolworth Co., 80 Mont. 431, 261 P. 253. As was said in Cummings v. R. Co., 217 N.C. 127, 6 S.E.2d 837, 839, "There must be legal evidence of every material fact necessary to support the verdict."

In the instant case the appellant urges the view that its motion for judgment of nonsuit should have been allowed, for the reason that plaintiff's evidence fails to show the source of the...