Humphries v. McCrory-McLellan Stores Corporation, 10223.

• Decision Date: 30 March 1966
• Docket Number: No. 10223.,10223.
• Citation: 358 F.2d 901
• Parties: Mrs. Agnes HUMPHRIES, Appellee, v. McCRORY-McLELLAN STORES CORPORATION, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

358 F.2d 901 (1966)

Mrs. Agnes HUMPHRIES, Appellee, v. McCRORY-McLELLAN STORES CORPORATION, Appellant.

No. 10223.

United States Court of Appeals Fourth Circuit.

Argued February 10, 1966.

Decided March 30, 1966.

Mortimer M. Weinberg, Sumter, S. C., (Perry M. Weinberg, Sumter, S. C., on the brief) for appellant.

Henry B. Richardson, Sumter, S. C., and Henry H. Edens, Columbia, S. C., (George C. James, Sumter, S. C., on the brief) for appellee.

Before HAYNSWORTH, Chief Judge, and BOREMAN and BRYAN, Circuit Judges.

ALBERT V. BRYAN, Circuit Judge.

Personal injury damages were awarded by a jury to Agnes Humphries for her fall, November 6, 1962, in the Sumter, South Carolina store of McCrory-McLellan Stores Corporation, which now appeals the judgment on the verdict. We reverse and order dismissal of the action for want of evidence of primary negligence.

The injury occurred when a spiked heel of plaintiff's shoe caught in a hole drilled in the threshold at the entrance to the store. The plaintiff was entering the store at the time, having just pushed open one of the double swinging doors. The hole is known as a mate; there is one for each of the doors at this point. Its function is to receive the bolt on the door as it is lowered to lock the door. When closed, the door covers and conceals the hole, but when opened, the hole is exposed.

The hole is round, no more than a penny's width across, and is a proper fixture. Its design and installation were specified by the building's architects many years before the plaintiff's mishap. It is too small to appear dangerous.

South Carolina law, of course governing here, imposes upon a storekeeper the obligation to use ordinary care to maintain the exits, adits and public spaces of his premises in a reasonably safe condition for the use of his customers. He does not insure their safety. See Baker v. Clark, 233 S.C. 20, 103 S.E. 2d 395 (1958); Hunter v. Dixie Home Stores, 232 S.C. 139, 101 S.E.2d 262 (1958). The shopkeeper has a duty also to warn of hidden danger or unsafe conditions of which he knows or in the exercise of reasonable supervision should know. See Baker v. Clark, supra, 233 S.C. 20, 103 S.E.2d 395; Bolen v. Strange, 192 S.C. 284, 6 S.E.2d 466 (1939).

Viewed most favorably for the plaintiff, the evidence wholly fails to prove any dereliction by McCrory in its duties. The mere existence of the hole did not establish negligence, for it was an appropriate fitting, as much so as knobs, hinges, locks or the threshold itself. No disrepair or intrinsic imperfection is shown or even alleged. McCrory was certainly aware of the hole. However, the evidence does not show that it gave any such indication or threat of possible hazard as to make it reasonably foreseeable as a menace to safety and require a warning of its presence.

Moreover, the plaintiff's heel was over three inches in height, with a slim shaft tapering to a base hardly a half-inch in diameter. A seamless or unbroken step or floor surface would be necessary to assure the wearer entire security. Common experience and observation teach how impracticable and unreasonable it would be to insist upon such exactness in providing ingress and egress into and from business premises. The obligation of ordinary care does not require it. While a heel of this delicacy may be demanded by feminine style, a corresponding protective fashioning of walkways is not demanded by law.

The plaintiff's judgment must be vacated and the action dismissed.

Reversed and dismissed.

HAYNSWORTH, Chief Judge (dissenting).

I would readily accept the reasonableness of the view of my brothers if theirs was the responsibility of drawing the ultimate factual inferences. I cannot agree, however, that the different view the jury took was an unreasonable one. I think the question was properly submitted to the jury for its resolution.

A storekeeper must exercise care to discover, and protect his customers against injury from, dangerous conditions on the premises.¹ Even if the dangerous condition be known to his...