Bryant v. S. H. Kress & Co

• Decision Date: 19 February 1948
• Docket Number: No. 31861.,31861.
• Citation: 46 S.E.2d 600
• Parties: BRYANT . v. S. H. KRESS & CO.
• Court: Georgia Court of Appeals

46 S.E.2d 600

BRYANT .

v.S. H. KRESS & CO.

No. 31861.

Court of Appeals of Georgia,

Division No. 1.

Feb. 19, 1948.

Syllabus by the Court.

1. Where the evidence for the plaintiff was sufficient to authorize a jury to find that the defendant was negligent in causing or allowing an excess amount of wax, or other slippery substance, to be placed upon the floor of its store, where the plaintiff was invited as a customer, and that by reason of the resultant condition of the floor she was injured by slipping and falling thereon, a prima facie case was made for the plaintiff; and the trial judge erred in granting a nonsuit.

2. It cannot be said as a matter of law that the plaintiff's walking between the counters of the defendant's store with knowledge that the floors of the store had been waxed was guilty of such negligence, if any, as would bar a recovery, where it appears that her act would not have been attended with any danger except for the excess amount of wax, or other substance, that the defendant had placed and allowed to remain on the floor between the counters, where the public was invited and where the plaintiff fell and was injured, which defect could only be discovered by an examination of the floor at that point.

3. The evidence, when construed in its most favorable light to the plaintiff, made out a prima facie case for the plaintiff; and the trial judge erred in granting a nonsuit.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Action by Margaret R. Bryant against S. H. Kress & Company for personal injuries. Judgment of nonsuit and plaintiff brings error.

Reversed.

Mrs. Margaret Rose Bryant sued S. H. Kress & Company in the Superior Court of Floyd County, seeking to recover damages for personal injuries alleged to have been sustained when she slipped and fell on the floor in defendant's store in Rome. Her petition alleged, in substance, that, on September 3, 1946, she was a customer in the defendant's store; that the defendant had placed on the floor of its store certain substances in the nature of wax or grease, which made the floor slippery and dangerous; that the wax or grease or other substance had been allowed to remain on the floor of the store during the hours of the day that the general public traded in the store; that the plaintiff did not know of the dangerous condition of the floor and could not have discovered it by the exercise of ordinary care; that she slipped and fell to the floor, thereby receiving certain specified personal injuries, which were alleged to be permanent; that she had suffered and would continue to suffer pain and agony on account of her injuries; that she had incurred doctor's and hospital bills in an unspecified amount; that "the defendant was negligent in the following manner and respect: 1st. By permitting its said agent and employee to place said wax, grease or other substance, unknown to petitioner, upon said floors during the hours of the day when the general public was invited to come and trade; 2nd. By knowingly permitting, through its agent and employee, said wax, grease or other substance of a slippery character or nature to remain on said floors during the hours of the day in which the public was invited to visit said store." The prayers of the petition were for process and for judgment against the defendant.

The case proceeded to trial. On the trial, the plaintiff testified that she went to the defendant's store to make a purchase and slipped on the floor and fell as she was walking between the counters in the store; that the floor was slippery; that one of the defendant's employees said that the floors had been waxed the previous Saturday night and that the plaintiff was the second person who had slipped at that particular place that morning; that plaintiff did not notice that the floor was slippery until after she had fallen; that the floor was a wooden floor and looked like any other wooden floor that had been waxed or oiled or had something put on it. One of the witnesses for the plaintiff testified that she was in the store at the time that the plaintiff fell and was injured; that, after the plaintiff had fallen, she observed that something had been on the floor; that it was "grease or something, " and that the floor looked different at the point where the plaintiff fell, she could see the print of plaintiff's heels, which left a streak in the "grease, wax or something." Another witness testified that she was in the defendant's store at the time the plaintiff slipped and fell and that she had almost fallen at the same place that same morning; that the floor had just been waxed and did not seem slippery, except along in the aisle where the plaintiff slipped and fell; that it was slippery in that aisle; that when "they carried her back there they said that they had just waxed it * * * Jewell Williams said that they had just waxed it too. * * * Then Miss Walker said that too. * * * This Jewell Williams * * * was the girl that was working on thecounter." There was other evidence as to the manner the accident occurred and as to the extent and character of the plaintiff's injuries, but it is not necessary to set it out here.

On motion of the defendant, the court granted a nonsuit; and the plaintiff excepted.

M. G. Hicks and W. T. Maddox, both of Rome, for plaintiff in error.

Bryan, Carter & Ansley, of Atlanta, and Wright, Rogers, Magruder & Hoyt and Dudley B. Magruder, Jr., all of Rome, for defendant in error.

SUTTON, Chief Judge (after stating the foregoing facts.)

1. "A nonsuit shall not be granted merely because the court would not...