Copeland v. Phthisic

• Decision Date: 27 February 1957
• Docket Number: No. 19,19
• Court: North Carolina Supreme Court
• Parties: , 63 A.L.R.2d 587 Belle H. COPELAND v. Haywood PHTHISIC and Henry G. Quinn, Individually and Partners, t/a P & Q.

Page 697

96 S.E.2d 697

245 N.C. 580, 63 A.L.R.2d 587

Belle H. COPELAND v. Haywood PHTHISIC and Henry G. Quinn, Individually and Partners, t/a P & Q.

No. 19

Supreme Court of North Carolina.

Feb. 27, 1957

John H. Hall, Elizabeth City, for plaintiff, appellee.

LeRoy & Goodwin, Elizabeth City, for defendants, appellants.

PARKER, Justice.

The defendants present for decision one question: Did the trial court commit error in denying their motions for judgment of nonsuit, made at the close of plaintiff's evidence, and renewed at the close of all the evidence?

The defendants operate a self-service retail grocery store in Elizabeth City, North Carolina. The stock of merchandise carried by defendants was arranged on shelves or counters for the purpose of effective display. The store had an asphalt tile floor, with a concrete subfloor. There were several aisles in the store, and defendants once a week waxed the floor with a heavy duty wax, that is not needed in homes. This wax has a water base, and, according to a certificate that comes with it, is rated as 'non-skid.' It is applied one night, and the next morning it is buffed with an electrical machine. The floor of the store was waxed by the defendants on Monday night and buffed on Tuesday morning, before the plaintiff fell on the following Saturday.

Plaintiff was an active lady 77 years of age, residing in Elizabeth City. On Saturday afternoon, between 3:00 and 4:00 o'clock, 2 July 1955, plaintiff, with her daughter, went to defendants' store to purchase prunes. She had visited the store before, and was familiar with it. It was a bright, sunshiny afternoon and the store was well lighted. Plaintiff was wearing low heel shoes and their soles were dry. She asked a clerk where the prunes were, and was following him down one of the aisles of the store, when she stepped on a slippery place, and both her feet slipped out from under her, and she fell. Her head struck the cosmetic counter, and her left hip was broken. Plaintiff had been given no notice or warning to watch the floor.

Plaintiff's daughter, Mrs. E. R. Russell, was behind her mother in the aisle when she fell. Mrs. Russell's testimony in part is as follows: 'Her foot just sloughed out from under her and she just went down. Her head struck the cosmetic counter and knocked some bottles over and broke them; I'd say about two bottles. I looked at the place on the floor where she had slipped. It looked like a big place of wax where her foot slipped and she fell. I'd say the patch of wax was about the shape of an egg, about this large, indicating (arms in an oval, fingers touching) in the shape of an egg, round. I don't know what size. I know it was a large enough place so you could see it. It was as large as I made by extending my arms and putting my hands together. I looked at it right after she fell, I wanted to see what she fell over, what caused her to fall. They had just picked her up, and I wanted to see, you know, what caused her to fall. * * * It looked like it hadn't been long waxed. * * * There was more wax on the floor at this place that I have told you about than on the rest of the floor. * * * I have had experience in using wax on floors, for twenty years, I guess. ' She further testified: 'Her shoe heel print was in that wax where she slipped. It had made a track where she slid in the wax. That was at the place I described to the jury. That was the place on the floor where I told about seeing this patch of wax. That particular patch of wax looked oily to me. Like it hadn't been too long put down, about two or three days.'

When plaintiff's head struck the cosmetic rack or shelf or counter a bottle there spilled on the floor where her head was lying, at a different place from where the patch of wax was.

Henry G. Quinn, one of the defendants, testifying in their behalf, said that the type of wax they used, and the manner of its putting on the floor by them, are in general and approved use in stores of this kind. He further said on cross-examination: 'When wax is properly applied, it is evenly distributed but it can be more evenly distributed with a buffer. ' He also testified enough people go through the store to require waxing it once a week.

The...