F. W. Woolworth Co. v. Stokes

• Decision Date: 17 October 1966
• Docket Number: No. 44049,44049
• Citation: 191 So.2d 411
• Parties: F. W. WOOLWORTH CO., Defendant-Appellant, v. Mrs. Myrtis STOKES, Plaintiff-Appellee.
• Court: Mississippi Supreme Court

Page 411

191 So.2d 411

F. W. WOOLWORTH CO., Defendant-Appellant, v. Mrs. Myrtis STOKES, Plaintiff-Appellee.

No. 44049.

Supreme Court of Mississippi.

Oct. 17, 1966.

Suggestion of Error Overruled Nov. 14, 1966.

Dent, Ward, Martin & Terry, Vicksburg, for appellant.

Harry R. Allen, Brunini, Everett, Grantham & Quin, Vicksburg, for appellee.

PATTERSON, Justice:

This is an appeal from the Circuit Court of Warren County wherein judgment was rendered for the plaintiff in the sum of $5900. The suit was brought for injuries alleged to have been sustained when the plaintiff slipped and fell on the floor of appellant's store.

Plaintiff's charge of negligence against the defendant, in substance, is that on the day she fell it had rained heavily for a considerable time, and the defendant knew or, by the exercise of reasonable care, should have known that customers would bring water into the store on their wearing apparel which would create a slippery condition on the floor hazardous to its customers; that nevertheless, the defendant negligently allowed water to accumulate on the floor of its premises with both actual and constructive notice of its slippery condition prior to plaintiff's fall.

The defendant admitted in its answer that plaintiff fell while walking in the aisle of its store. It admitted the heavy rainfall and admitted that since it was Christmas Eve day, there were many customers who came into the store. It further admitted that these customers brought water into the store on their clothes, umbrellas, and shoes. It denied, however, that it had either actual or constructive notice of the presence of the puddle of water on the floor in which plaintiff slipped, and contended that it had used reasonable care to keep its floors in a reasonably safe condition for the use of its customers. It charged the plaintiff with contributory negligence in 'failing to use ordinary care in not observing and stepping in the water, if any, on defendant's floor under the circumstances and weather conditions existing.' As a further affirmative defense, defendant charges the plaintiff with assumption of risk, alleging 'that the danger of slipping in the puddle of water on defendant's floor as described in the declaration, if any there was on the floor, was open, obvious, and within the knowledge of plaintiff and was fully known to plaintiff and well appreciated by her; that plaintiff in stepping in said puddle of water assumed the risk and danger of so doing.'

The record reflects that Christmas Eve day of 1962 was one of intermittent rainfall, it having rained almost continuously from 1:00 in the morning until 7:50 that evening. On this date plaintiff and her husband were Chirstmas shopping in the city of Vicksburg. They arrived at appellant's store at approximately 11:30 in the morning and shopped therein for about thirty or forty minutes before going to the lunch counter which was located in the front section of the store. The counter was crowded and the plaintiff and her husband had to wait for several minutes in order to find seats together for lunch. They were finally seated in the last two seats of the counter, that is, the two seats furthest removed from the north entrance to the store. They finished their lunch at about 1:00 p.m. and walked back along the counter from where they had been served to another part of the store to resume their shopping. At the jewelry counter plaintiff discovered that she had left her scarf at the lunch counter and returned to retrieve it. When she reached the end of the lunch counter nearest the front of the store, her foot slipped in a puddle of water causing her to fall. She was helped to her feet and rejoined her husband who had not accompanied her to obtain the scarf.

Plaintiff reported the accident to the store manager and showed him the puddle of water in which she had slipped and fallen, whereupon the manager mopped the floor in the area of the fall. This area was approximately three feet from the lunch counter and from six to ten feet from the front entrance, though the entrance was separated from the lunch counter by a rail, and additionally, there was an ice cream freezer and a mechanical riding horse between the front entrance and the spot where the plaintiff fell.

The defendant's store manager testified that Christmas Eve was one of the busiest days of the year for the defendant and that he was aware that it had been raining intermittently all day. He further testified that the floor was of vinyl and that it was slippery when wet; that he knew water was being tracked into the store. As a matter of precaution, since water was being tracked into the store by the customers, he had placed a waste can at the entrance to the store in which customers could put their umbrellas; mops were available and were used in the store by the manager and other employees during the day to clean up water which was tracked in. He testified, however, that the defendant did not use Feldspar, an anti-slip compound, nor place rubber mats on the floor.

The assistant manager of the store testified that it was his general duty to supervise the floor and to see that it was kept clean, 'and since it was raining that day to be sure that as much of the water as possible would be kept off the floor.' He testified that both he and the cleanup boy mopped water from the floor at intervals of approximately fifteen minutes, and though the area of the lunch counter was under his specific supervision, he doubted he was there during the lunch hour, since it was his lunch hour also.

The appellee was a regular customer of Woolworth, the defendant, as she had traded there for a number of years. She was acquainted with many of the personnel of the store, including the manager, the assistant manager, and both regular floor supervisors. She testified that the area in which she slipped was within her view during the time that she and her husband were at the lunch counter, and that she did not see anyone mop this area during that time.

The appellant assigns as error (1) the trial court's overruling appellant's motion for a directed verdict at the close of appellee's testimony, (2) the trial court's refusing appellant's request for a peremptory instruction at the conclusion of all the testimony, (3) the trial court overruling appellant's motion for a judgment n.o.v. or in the alternative for a new trial, and (4) the trial court's refusing two instructions requested by the appellant with reference to notice, either actual or constructive, of the presence of the puddle of water on the floor.

The thrust of the defendant's assignments of error and argument is that the defendant had no notice, either actual or implied, of the water upon the floor in which the plaintiff slipped and fell. In support of this contention he cites Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916 (Miss.1966) in which we quoted with approval the following language in Mississippi Winn-Dixie Supermarkets, Inc. v. Hughes, 247 Miss. 575, 584, 156 So.2d 734, 736 (1963):

'* * * where it appears that a floor in a store or similar place of business has been made dangerous by litter or debris present thereon, and that the presence of the litter or debris is traceable to persons for whom the proprietor is not responsible, proof that the proprietor was negligent in relation to the floor condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that, in the exercise of reasonable care, he should have known of it.'

In the Sears case we said further:

In other words, there must be actual or constructive notice to the store owner. The (sic) may be proved by direct or circumstantial evidence, but it must be proved; otherwise, there would be no liability. (185 So.2d at 917.)

See also Williamson v. F. W. Woolworth Co., 237 Miss. 141, 112 So.2d 529 (1959), as well as numerous authorities from other jurisdictions. This theory, lack of notice, was urged by the defendant in its motions for a directed verdict at the close of appellee's testimony, for a peremptory instruction at the conclusion of all the testimony, for a judgment notwithstanding the verdict, and as the basis for two instructions with reference to notice, all of which were overruled by the trial court.

The plaintiff's theory of the case, as pressed upon us, is founded upon circumstances which were such as to create a reasonable probability that a dangerous condition existed in the area of the lunch counter and that the defendant, with knowledge of the condition, or a reasonable probability that such a condition existed, did not exercise due care in order to minimize the risk of harm to appellee. In short, the plaintiff maintains that the real issue is whether ordinary care was used to remedy a condition known to exist. She contends further that the issue of whether ordinary care was used by the defendant to remedy a hazardous condition known to exist is a factual one for determination by a jury.

The cited cases correctly state the rule of law that notice, either actual or constructive, to a store proprietor of a hazardous floor condition on the premises is essential before there can be liability on his part. Our prior decisions relating to notice of foreign objects or obstacles on a floor which created a hazardous condition, such as a gum ball in Tisdale, supra, dry vermicelli in Hughes, supra, and a banana peel in Williamson, supra, are illustrative of this point. These cases, however, do not fall within the shadow of the facts established here. The present suit is more analogous to that pronounced in 62 A.L.R.2d 6, 33 (1958) as follows:

In contrast with the rule applicable to a floor condition resulting from the act of the proprietor, it is held that where it appears that a floor in a store or similar place of business has been made slippery as a consequence of the presence thereon of water, oil, mud, snow, or a similar substance, and...