Garland v. Furst Store

• Decision Date: 08 May 1919
• Docket Number: No. 39.,39.
• Citation: 107 A. 38
• Parties: GARLAND v. FURST STORE.
• Court: New Jersey Supreme Court

107 A. 38

GARLAND

v. FURST STORE.

No. 39.

Court of Errors and Appeals of New Jersey.

May 8, 1919.

Syllabus by the Court.

Appeal from Supreme Court.

Action by Helen Garland against the Furst Store. Verdict for plaintiff was affirmed on appeal to the Supreme Court, and defendant appeals. Judgment of the Supreme Court reversed, to the end that a venire de novo may issue.

Runyon & Autenreith and Walter L. McDermott, all of Jersey City, for appellant.

Doherty & Kinkead and Richard Doherty, all of Jersey City, for respondent.

WALKER, Ch. This is an action at law for alleged negligence resulting in personal injuries. It was tried before Judge Cutler and a jury in the Hudson circuit court, and upon the trial, on motion of the appellant, the jury were permitted to view the scene of the accident. Motions to nonsuit and to direct a verdiot were denied, the jury rendered a verdict for the plaintiff, and upon appeal to the Supreme Court the judgment was affirmed. From the judgment entered upon that affirmance an appeal has been taken to this court.

The complaint alleges that the defendant, in conducting a department store, maintained a slippery tiled floor in the basement, which from its nature and from the negligent manner of its construction was dangerous to persons walking upon it, and that it was negligently permitted to become slippery. It appears that the plaintiff, on May 20, 1910, went to the store of the defendant, and into the shoe department in the basement. The floor, according to the plaintiff's testimony, was tile or marble, and in front of the benches where the shoes were sold were strips or runners of carpet. The plaintiff made a purchase, and then proceeded to walk across the floor to the stamp desk, and, using her own words:

"I just walked along from where I got the package to the stamp desk, and as I got to the side, to go to hand my slip, my two feet was taken, and I had slipped down on my left hip."

The plaintiff testified that at the spot where she fell the floor was clean. She said:

"I noticed that it was clean; * * * nice and clean."

The plaintiff was accompanied at the time by her daughter. Just what caused the plaintiff to fall does not appear from the testimony; and it appears that no foreign substance, such as oil or grease, was on the floor when and where she fell. It did appear that the floor was such as may be found in bank buildings; it was made of solid concrete in 1912, and was smooth and in good order; that it had been traversed by thousands every week in the four years since its construction; and that no one had ever been known to slip on it before. It is true that plaintiff's daughter said the basement floor was very slippery, and that anybody could slide along it at the time her mother fell, not that it was more slippery where she fell. Floors are either smooth or rough, and smooth floors are not necessarily slippery ones.

The grounds of appeal are the refusal to nonsuit, the refusal to direct a verdict, and the affirmance of these refusals in the Supreme Court.

To sustain the judgment in this case counsel for the plaintiff respondent urges that the proof before the jury made the defendant prima facie liable under the doctrine of Phillips v. Library Co., 55 N. J. Law, 307, 27 Atl. 478, and Schnatterer v. Bamberger, 81 N. J. Law, 558, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139. In Phillips v. Library Co. it was held that the owner or occupier of lands, who by invitation, express or implied, induces persons to come upon premises, is under a duty to exercise ordinary care to render them reasonably safe for such purpose, or at least to abstain from any act that will make the entry upon or the use of the premises dangerous. Now, it will be noted that the premises in question in this case, upon which the plaintiff was invited to enter and where the accident happened, was the floor of the basement of defendant's department store. It was made of solid concrete composition, such as are the floors of bank buildings, and it does not appear that the plaintiff slipped upon any foreign substance in the fall which she sustained and which injured her. The floor was undoubtedly smooth, but, apparently, was not slippery, as it had been traversed by thousands of people every week the four years since its construction, and no one had ever been known to slip there before. It would thus appear that the premises were reasonably safe for the entry thereon of persons resorting to the store, and it is not shown that the defendant was guilty of any act which would make them dangerous. In fact, there is no contention to that effect.

In Schnatterer v. Bamberger the plaintiff, in going down steps leading to the basement of defendant's store, caught the heel of her shoe in a brass nosing (originally attached to the edge of the wooden step to prevent its wear), which was loose, causing her to trip and fall, and it was held that the evidence failed to show the storekeeper had not used reasonable care in keeping the stairway safe for use, for the reason that it had not appeared that the defect had been brought to the notice of the storekeeper, or had existed for such a length of time as to charge him with notice of its existence, and that in the absence of proof of one of those conditions a prima facie case of negligence was not established. For aught that appears in the case at bar, the defendant had no notice of the alleged slippery condition of the basement floor.

The Supreme Court in its opinion in this case remarked that the inquiry was whether there was any evidence of the existence of an unusually slippery condition; the notice thereof to the owner, if it existed, not being a contested point. This would appear to indicate that, in the opinion of the Supreme Court, notice to the defendant might be presumed, as it produced no evidence denying that it had received notice. So far as this observation purports to state a principle of law, it is erroneous. It is directly contrary to the ruling in Schnatterer v. Bamberger. There it was held that in the absence of proof that the defect had been brought to the notice of the storekeeper, or had existed for such a length of time as to charge him with notice, a prima facie case of negligence was not made out. The rule is that, where liability is made to depend at all upon notice to the defendant, the plaintiff must establish the notice before the defendant is called upon to contest it; in other words, it is not to be presumed.

It is not perceived that there is any difference in the law of negligence between a person slipping on a stairway or on a floor; and in Schnatterer v. Bamberger Co., supra, 81 N. J. Law, at page 561, 79 Atl. 324, 34 L. R. A. (N. S.) 1077, Ann. Cas. 1912D, 139, this court, referring to the earlier case of De Mateo v. Perano, 80 N. J. Law, 437, 78 Atl. 162, observed that evidence of the previous knowledge of the landlord of the defective condition of a roof leader was deemed an element essential to carry the case to the jury, and this was laid hold of as a reason for deciding that notice of the defective step in the Bamberger store was requisite to be brought home to the defendant in order to create liability.

Nor does res ipsa loquitur apply. People frequently sustain falls when and where others do not. In Paynter v. Bridgeton, etc., Co., 67 N. J. Law, 619, 52 Atl. 367, it was held that a mere fall from a street car, without any evidence to show how the fall was occasioned, raises no presumption of negligence on the part of the operators of the car, and that the doctrine of res ipsa loquitur was applicable only when the thing shown speaks of the negligence of the defendant, not merely of the happening of the accident. In Kingsley v. D., L. & W. R. R. Co., 81 N. J. Law, 536, at page 541, 80 Atl. 327, 35 L. R. A. (N. S.) 338, Mr. Justice Minturn, speaking for this court, remarked that out of a car filled with passengers none had been produced to testify to the inherent or obvious danger incident to alighting therefrom, or that any other accident took place at that time, or at any other period, in the attempt to use the step and platform, and that the argument of negligence by the defendant in that case must proceed upon ad hominem lines, and not upon notice to the defendant from the happening of a previous accident, or from the clear obviousness of danger incident to the maintenance of a dangerous condition, and it was held in the case that the mere happening of an accident, without some proof of facts from which a violation of a duty to the plaintiff by the defendant may be legitimately inferred, as a rule will not constitute negligence. Now, in the case at bar, assuming that the floor was smooth, or even slippery, it is obvious that it was not so smooth or slippery as, for that reason, to cause falls, for, if it were, there would have been others besides that of the plaintiff, both at and before the time of her accident.

The mere fact that Mrs. Garland fell on the floor of the Furst store, without any evidence to show how the fall was occasioned, raises no presumption of negligence on the part of the owner, and...