Griggs v. Sears

• Decision Date: 18 September 1940
• Docket Number: No. 96.,96.
• Citation: 10 S.E.2d. 623,218 N.C. 166
• Court: North Carolina Supreme Court
• Parties: GRIGGS . v. SEARS, ROEBUCK & CO.

10 S.E.2d. 623

218 N.C. 166

GRIGGS .

v.SEARS, ROEBUCK & CO.

No. 96.

Supreme Court of North Carolina.

Sept. 18, 1940.

Appeal from Superior Court, Buncombe County; Wilson Warlick, Judge.

Action by Elmer N. Griggs, administrator of the estate of Margaret Young Griggs, deceased, against Sears, Roebuck & Company, for injury and death of plaintiff's intestate, which allegedly was caused by negligent conduct of defendant in maintaining a walkway in store in a condition dangerous for ordinary use. From a judgment of nonsuit, the plaintiff appeals.

Affirmed.

Jordan & Horner, of Asheville, for plaintiff, appellant.

Harkins, Van Winkle & Walton, of Asheville, for defendant, appellee.

SEAWELL, Justice.

In this action plaintiff seeks to recover damages for the injury and death of his intestate, Margaret Young Griggs, which, he alleges, was caused by the negligent conduct of the defendant in maintaining a floor, or walkway, in its store in a condition dangerous for ordinary use. The neg-ligence is alleged to have consisted in placing upon the tiled floor, and in the walkway which plaintiff's intestate had to use, a piece of linoleum upon which defendant had allowed or caused to accumulate an excessive quantity of wax, thereby producing a slippery and unsafe surface. The plaintiff's intestate, it is alleged, had completed a purchase and was leaving the store in the usual way, and placing one foot on the linoleum she slipped upon the slick surface, fell heavily to the floor, and sustained injuries which caused her death some two months later. The injury sustained, it is alleged, was in aggravation of a duodenal ulcer, which finally disrupted, or came to puncture the walls of the duodenal canal, causing death.

There was evidence supporting the allegation as to the fall of plaintiff's intestate by slipping on the linoleum and, upon a close appraisal, as to the acceleration of death by reason of the fall through such aggravation of the ulcer. But, in our opinion, the evidence did not support the allegation that an excessive or unusual quantity of wax had been allowed to remain on the linoleum, which was the condition alleged in the complaint to be the basis of the negligence charged and to be the proximate cause of the fall and injury and death.

The evidence, as we view its natural inferences, goes only so far as to show that the linoleum surface had been waxed in the usual manner. Plaintiff here depends for recovery on the circumstance that the polished surface of the linoleum was interposed in the usual walkway and was much slicker than the rest of the floor, which consisted of tiling. He points out that this introduces the element of surprise and demands a speedier readjustment of the way of walking over other parts of the floor than could be readily made.

There is a want of evidence as to the condition of the tiling with regard to its smoothness or slickness as compared with the surface of the linoleum; and this want of direct evidence could only be supplied by assuming, as a matter of common knowledge of the materials used in the floor, that such difference existed between the surfaces. We could hardly go so far as to assume the difference existed at the time and to such a degree as to be evidence of negligence.

We are unable to interfere with the result of the trial, not so much on the theory of variance between allegatur and probatur--although in the history and light of similar cases that difference is important--but because we are unable to see evidence of negligence in the facts themselves....