FW Woolworth Co. v. Williams, 4961.

• Decision Date: 02 June 1930
• Docket Number: No. 4961.,4961.
• Citation: 59 App. DC 347,41 F.2d 970
• Parties: F. W. WOOLWORTH CO. v. WILLIAMS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 347, 41 F.2d 970 (1930)

F. W. WOOLWORTH CO. v. WILLIAMS.

No. 4961.

Court of Appeals of District of Columbia.

Argued May 7, 1930.

Decided June 2, 1930.

Edmund L. Jones, of Washington, D. C., for appellant.

Wm. S. Hammers and Edward T. Quigley, both of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

This appeal is from a judgment against appellant, defendant below, for damages resulting from injuries sustained by the plaintiff in defendant's store on October 5, 1926.

It appears that the defendant was conducting a "Five-and-ten cent" store on Fourteenth street in the city of Washington. About 5:30 o'clock in the evening plaintiff entered the store and, after making a small purchase, was leaving through one of the aisles when she slipped and fell, breaking her arm. She was the only witness who testified on her behalf as to the cause of the accident. She stated that when she was assisted from the floor to a chair she noticed an oval-shaped spot on the floor at about the point where she fell; that the spot was darker than the floor; that it was slightly raised above the floor, and that she had no doubt but that her heel went into this spot and caused her to slip.

Several witnesses were called by the defendant, who testified that an immediate examination of the floor was made after the accident, and that no substance appeared on the floor that would have caused the plaintiff to slip. One witness testified that he was employed by the defendant as a receiving clerk, and that he swept up and did general work around the defendant's store; that he saw the plaintiff fall at the front of the first counter near the front of the store, and in the aisle between the counter and the south wall. At the time of the fall he testified he was sweeping the adjacent aisle; that he immediately went to the point where the plaintiff fell and examined the floor and found it perfectly dry; that he had just finished sweeping the aisle in which plaintiff fell a few minutes prior to the time of the accident. The manager and assistant manager of the store and two clerks testified in substance that they examined the floor within a few minutes after the accident and that they found the floor to be clean; that there was no trash, soap, or grease of any kind on the floor.

Error is assigned on the refusal of the court to direct a verdict for the defendant at the close of all the testimony in the case.

It is charged in the declaration that defendant was negligent in that "it allowed and permitted some greasy, slimy, oily, or other like foreign substance to be and remain upon said floor, and did fail to remove and clear said floor of said substance so as to remove danger to plaintiff and other persons of slipping and falling on said floor by reason of the presence of said substance thereon."

The burden of proving defendant's negligence is upon the plaintiff. The mere happening of the accident does not shift to the defendant the burden of establishing that the accident did not occur through its negligence, nor does it create a presumption of negligence. On the contrary, the legal presumption is that reasonable care was exercised by the defendant. In the case of Schnatterer v. Bamberger et al., 81 N. J. Law, 558, 79 A. 324, 325, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139, the plaintiff sued for injuries sustained from a fall in defendant's store. The fall was caused by her tripping on a loosened brass edging or nosing originally fastened by screws to the upper edge of the step for the protection thereof. The court, affirming the judgment in nonsuit, among other things, said: "When the plaintiff rested her case, it had not appeared that the defendant company had been guilty of any want of reasonable care in the keeping of its store safe for her use, for the reason that she had failed to show that the defective condition of the brass edging which she said existed on the night of the accident of April 24th had either (a) been in fact brought to the previous notice of the defendant, or, failing in proof of such actual notice, that (b) the defect had existed for such space of time before that occurrence as would have afforded the company sufficient opportunity to make proper inspection of its stairways to ascertain their condition as to safety, and to repair their defects. In the absence of proof of either, the legal presumption is that defendant had used reasonable care."

The defendant is not...