Kroger Grocery and Baking Company v. Monroe

• Citation: 237 Ky. 60
• Parties: Kroger Grocery & Baking Company v. Monroe.
• Decision Date: 20 January 1931
• Court: United States State Supreme Court (Kentucky)

Page 60

237 Ky. 60

Kroger Grocery & Baking Company v. Monroe.

Court of Appeals of Kentucky. (Common Pleas Branch, Second Division).

Decided January 20, 1931.

1. Negligence. — Storekeeper must use ordinary care to maintain floor in reasonably safe condition for customers.

2. Negligence. — "Ordinary care," as applied to storekeeper, is that degree of care usually exercised by ordinarily prudent person engaged in same line of business.

3. Negligence. — Customer in store must exercise degree of care usually exercised by ordinarily prudent persons under like circumstances with respect to use of slippery floor.

4. Negligence. — Customer in store walking carefully on floor held not guilty of contributory negligence as matter of law, notwithstanding her knowledge of presence of oil thereon.

5. Negligence. — Customer in store who knew of presence of oil on floor held not as matter of law to assume risk of injury in walking thereon.

6. Negligence. — Customer in store had right to assume it was reasonably safe to walk on oiled floor.

Appeal from Jefferson Circuit Court

O'NEAL & O'NEAL for appellant.

WOODWARD, HAMILTON & HOBSON for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

This is an action for damages for personal injury. For her cause of action, appellee alleges that appellant owned and operated a store on the Bardstown road near Tyler Parkway in Louisville; that on December 24, 1928, she went to this store to purchase some cream; that appellant, at that time, negligently and carelessly maintained the floor of the storeroom, and so negligently and carelessly allowed same to be oiled, as to make it dangerous and unsafe; that this dangerous and unsafe condition was known to appellant, or might have been known to it by the exercise of ordinary care on its part; that such dangerous and unsafe condition was not known to her, and could not have been discovered by her by the exercise of ordinary care; and that while trading in the store and at a place set apart by appellant for the use of appellee and its other customers, and while she was exercising ordinary care for her own safety, she was caused to slip and fall by reason of the unsafe condition of the floor, and that she thereby received certain personal injuries.

Subsequently, she filed an amended petition setting out more in detail her injuries, and increasing the amount of her damages to $20,000. The appellant traversed the allegation of the petition, and, in the second paragraph, it pleaded contributory negligence. In the third paragraph thereof it alleged that the condition of the floor was known to and easily seen and discovered by appellee when she walked in the front door of the store, and that, with this knowledge of the condition of the floor, continued into the place and thereby assumed the risk of the injury complained of. This answer was traversed by a reply. Thus the issues were made up.

On the trial, appellee testified, in substance, that she resided between a block and a half and two blocks from the store; that she had been trading at this store for two or three years; that she did a great deal of trading there, on an average of five or six days a week; that on the afternoon of December 24, 1928, for the purpose of making a purchase of cream, she entered it. On entering, she observed an unusual amount of oil on the floor near the door; that her eyes fell on it as she entered the store. On entering the turnstile, she turned to the left, walking very "slowly and very carefully," as slowly as she could to be walking along; that she was extra careful and walked past the first and second row of shelves, going to the ice box where the cream was kept; that she did not stop to purchase, look at, or observe anything for sale. As she turned to her left going toward the ice box her foot slipped on the oiled floor, she fell, and in falling she was hurled headlong against an upright piece of oak which held the third portion of the shelves; from this fall she was knocked senseless; that she remembered fainting five different times; that when she first became conscious she was supporting herself with her left arm; that she was unable to say anything to anybody in the store; that Dr. Ellis Duncan took her to the Baptist Hospital where he sewed up her scalp, made an X-ray, and gave her the lockjaw serum; she remained at the hospital until the next afternoon when she was brought home; she was confined to her bed for three or four weeks, sitting up only an hour or so each day. Her right leg and right hip were injured that she suffered excruciating pain in her left side and was unable to sleep at night; that there was a cut on her head on the right side; a portion of her scalp, as large as a hand, was torn loose, and for several months she was practically paralyzed.

Her son testified in her behalf that, on arriving at the store within a very short time after the accident, he observed the condition of the floor; that it had been partially oiled; that it was very easy to see that it had been oiled; that there was oil on the floor; that the floor was slick; that he examined the floor where his mother had fallen; that he could see where her foot had slipped on the floor; the mark was ten inches or a foot in length. The daughter states that, within fifteen or twenty minutes after she received information of her mother's injury, she arrived at the store of appellant; that she observed the condition of the floor as she entered the store; the floor was freshly oiled and was light in color where the oil had begun to soak in, and dark where it had not; that the floor was slick.

Two customers and two employees of appellant testified in its behalf that they were present at the store at the time appellee fell and received her alleged injury. One of these customers testified that she went into the store "right behind" appellee, followed her around to near the end of the third aisle; that she was "right behind" her when she fell, and when asked if there was any oil on the floor responded, "I never seen it;" that, after falling, appellee exclaimed, "My ankle gave way with me and I fell;" that she picked up appellee's pocketbook and handed it to the clerk; that the floor was not slick; that she went across it, and she did not fall.

The other customer testified that she was at the store at the time the accident happened; that she went all through the store; that the floor seemed to her to be as it always, extremely clean; that there was no oil on it at all; that she did not see appellee fall as she was using the telephone at the time; that on learning that she had fallen, and being acquainted with her, she went to her and offered her assistance. In her presence, appellee stated her ankle must have turned and caused her to fall.

The employees of appellant testify that they were in the store; that they heard appellee say her ankle turned under her; that there was no oil on the floor. The process of oiling the floor, next before the happening of the accident,...