Harris v. Montgomery Ward & Co.

• Decision Date: 25 May 1949
• Docket Number: 666
• Citation: 53 S.E.2d 536,230 N.C. 485
• Parties: HARRIS v. MONTGOMERY WARD & CO.
• Court: North Carolina Supreme Court

53 S.E.2d 536

230 N.C. 485

HARRIS v. MONTGOMERY WARD & CO.

No. 666

Supreme Court of North Carolina

May 25, 1949

This is a civil action to recover damages for personal injuries.

The defendant is engaged in the mercantile business in the City of Greensboro. The plaintiff, with her husband, entered the store of the defendant in the afternoon on May 7, 1947, a little before five o'clock. She testified: 'I went upstairs and bought several things and came back downstairs and was just walking along across the floor and stepped in a little greasy place and my feet commenced to slip. My right foot slipped * * * I reached for the counter * * * and that made me fall back on my right side. ' The little greasy spot, according to the testimony of the plaintiff and her husband, was about half as large as one's hand and was located in the 'walkway'. The plaintiff suffered a broken leg.

C V. Stack, a former employee of the defendant, was offered as a witness for the plaintiff, and testified: 'I had observed the condition of the floors down there on this day the floor where she fell, because they had just Myco-sheened it or whatever they call that they put on the floor. I presume the whole floor was like the condition of the floor at the point where she fell. * * * The floor had been Myco-sheened that evening; in fact I am not sure whether it was in the process or had been completed all over, but oughtn't to have been in the process because it happened very late. Rufus Cornelius did the actual work. * * * I could not say the floor was any different in that particular place than it was in the rest of the building or what he had completed of the building. I know the Mycosheen had been applied--Myco-sheen had been applied to the place where she fell.'

The plaintiff also introduced in evidence the adverse examination of Rufus Cornelius, an employee of the defendant at the time of the accident, who testified he was the janitor; that no oil was used on the floor of the defendant's store, but a preparation called Myco-sheen that Myco-sheen is slick if it is not put down right; that Myco-sheen was used to keep the floor moist, to keep the dust down; that the 'floors are dirty and the oil keeps the dust off the merchandise'; that 'I always put it down on Saturday night * * * so by Monday morning it was in good shape, and I checked it first thing. I would sweep to be sure there was no slick or dirty places I didn't miss. * * * We Myco-sheen the floor about once a month to clean the floor. I do not know how many weeks it had been before this that the Myco-sheen had been put on the floor. It has been done so long I am not sure when it had been done.'

From a verdict and judgment for plaintiff, defendant appeals and assigns error.

A. Stacey Gifford and James E. Coltrane, Greensboro, for plaintiff.

Frazier & Frazier, Greensboro, for defendant.

DENNY Justice.

The appellant seriously contends its motion for judgment as of nonsuit, interposed at the close of plaintiff's evidence and renewed at the close of all the evidence, should have been sustained.

Ordinarily an action against an owner or lessee of a building cannot be sustained where it is founded solely upon the fact that a patron or invitee was injured by slipping on a waxed or polished floor, where the floor had been waxed or polished in the usual and customary manner and with material in general use for that purpose. Barnes v. Hotel O. Henry Corp., 229 N.C. 730, 51 S.E.2d 180, and the cases cited therein.

The fact that a floor is waxed or polished is not ipso facto evidence of negligence. Res ipsa loquitur does not apply to injuries resulting from slipping or falling on a waxed or oiled floor. Barnes v. Hotel O. Henry Corp., supra; Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242; Parker v. Great Atlantic & Pacific Tea Co., 201 N.C. 691, 161 S.E. 209; Bowden v. S. H. Kress & Co., 198 N.C. 559, 152 S.E. 625. Moreover, the proprietor of a store is not an insurer of the safety of his customers; and when an action is brought against him to recover for an injury resulting from a fall, caused by some substance on the floor where customers may be expected to walk, 'in order to justify recovery it must be made to appear that the proprietor either placed or permitted the harmful substance to be there, or that he knew or by the exercise of due care should have known of its presence in time to have removed the danger or given proper warning of its presence. ' Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E.2d 199, 201; Fox v. Great Atlantic & Pacific Tea Co., 209 N.C. 115, 182 S.E. 662; Sams v. Hotel Raleigh, 205 N.C. 758, 172 S.E. 371; Cooke v. Great Atlantic & Pacific Tea Co., 204 N.C. 495, 168 S.E. 679; Parker v. Great Atlantic & Pacific Tea Co., supra; Bohannan v. Leonard-Fitzpatrick-Mueller Stores Co., Inc., 197 N.C. 755, 150 S.E. 356.

We concede this is a border line case. However, the plaintiff offered evidence to the effect that an employee of the defendant applied Myco-sheen on the floor where the plaintiff fell only a short time before the accident, and that plaintiff's fall was caused by slipping on a little greasy, slick spot on the floor. The plaintiff also offered evidence to the effect that Myco-sheen is slick if not properly applied, and when it is applied on Saturday night the floor is always gone over on Monday morning in...