Lander v. Sears

• Decision Date: 20 December 1945
• Citation: 44 A.2d 886
• Parties: LANDER v. SEARS, ROEBUCK & CO.
• Court: Maine Supreme Court

44 A.2d 886

LANDER

v.SEARS, ROEBUCK & CO.

Supreme Judicial Court of Maine.

Dec. 20, 1945.

Exceptions from Superior Court, Penobscot County.

Action by Nora J. Lander against Sears, Roebuck & Company for injuries sustained by plaintiff in a fall on defendant's premises. The court directed a verdict for defendant, and plaintiff brings exceptions.

Exceptions overruled.

Abraham Stern and Charles P. Conners, both of Bangor, for plaintiff.

James E. Mitchell, of Bangor, for defendant.

Before THAXTER, HUDSON, MANSER, and MURCHIE, JJ., and CHAPMAN, Active Retired Justice.

MURCHIE, Justice.

This case, brought forward by plaintiff's exceptions to the direction of a verdict for the defendant, presents the single issue whether a storekeeper is negligent in permitting customers to enter a store, having a floor which becomes slippery when weather conditions are such that water or moisture will be tracked in upon their footwear, without protecting them from the hazard of slipping by the use of mats or other materials under such circumstances or by keeping the floor dry through mopping. A wet floor inevitably results when customers in large numbers enter a store from the street when rain or snow is falling, or the ground outside is covered with melting snow. The facts with which we deal show that the plaintiff slipped and fell in defendant's store in the early afternoon of December 18, 1943, the weather being mild, with snow, ice and slush covering the highways and sidewalks which provided access to the premises. Every customer who entered, including the plaintiff, must have tracked moisture into the store and onto its floor.

The allegations of negligence concerning which evidence was introduced are that the surface of the floor at the time the plaintiff was injured was wet, very slippery and unsafe; that it was hazardous whenever water or moisture was permitted to remain thereon; and that temporary mats or covers should have been provided under prevailing weather conditions, or arrangements made to keep the surface dry by mopping. Additional allegations, entirely unsupported by testimony, are that the floor was surfaced with ‘linoleum or other like smooth material’; that a ‘particular location’ of the aisle where the plaintiff fell contributed to her fall; that the defendant or its servants knew, or ought to have known, of the hazard, in the exercise of due care; and that the duty of the defendant was ‘to see that the floors of its * * * store were in a safe condition to be walked upon’.

The applicable law is established. It is stated with great clarity in an annotation covering more than 50 pages commencing at 100 A.L.R. 710, at page 711:

‘The proprietor of a store or shop owes a duty to his invitees to exercise reasonable, ordinary, or due care to keep his premises reasonably safe for their use.'

This is consistent with the statement of the rule set forth in 38 Am.Jur. 754, Par. 96, and with many decided cases cited in the annotation aforesaid and in a footnote to that text. It has been declared the law in this jurisdiction. Thornton v. Maine State Agricultural Society, 97 Me. 108, 53 A. 979, 94 Am.St.Rep. 488; Graffam v. Saco Grange Patrons of Husbandry, 112 Me. 508, 92 A. 649, L.R.A.1915C, 632. A storekeeper is not held to insure his patrons against injury while on his premises. S. S. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Bader v. Great Atlantic & Pacific Tea Co., 112 N.J.L. 241, 169 A. 687. The distinction between his duty and that of an insurer was well drawn by Mr. Justice Farrington in Charpentier v. Great Atlantic & Pacific Tea Co., 130 Me. 423, 157 A. 237, 238, when he said, in speaking of the duty of a railroad to its employees:

‘It does not undertake to provide a reasonably safe place * * *, but it does undertake to use due care to do so, and that is the measure of its duty.'

The issue presented by the exceptions is the application of this law to the facts of the present case. Those facts can not be said to be in dispute although the evidence discloses conflicts of testimony as to whether the surface of the floor at the point where plaintiff fell was wet or dry, the exact location of that point, and whether plaintiff was passing it for the first time that day or had passed it once and was retracing her steps. In considering the propriety of a directed verdict all such conflicts must be resolved in the manner most favorable to the plaintiff. Howe v. Houde, 137 Me. 119, 15 A.2d 740; Barrett v. Greenall, 139 Me. 75, 27 A.2d 599; Jordan v. Maine Central R. Co., 139 Me. 99, 27 A.2d 811. We must pass upon the exceptions on the assumption that the jury would have found that the plaintiff fell where and as she deposed, while walking in the direction she asserted, and that the floor at that point was wet and slippery, but if the evidence viewed thus favorably would not warrant a jury finding that the defendant had not exercised ‘reasonable, ordinary, or due care to keep his premises reasonably safe’ for the use of its customers, to repeat the essential language of the quotation from the A.L.R. annotation supra, it was proper for the Justice before whom the case was tried to direct a verdict for the defendant, as he did. Heath v. Jaquith, 68 Me. 433; Bennett v. Talbot, 90 Me. 229, 38 A. 112; Johnson v. Portland Terminal Co., 131 Me. 311, 162 A. 518; Scannell v. Mohican Market, 131 Me. 495, 160 A. 777. This principle is of general application. Hathaway v. Chandler & Co. Inc., 229 Mass. 92, 118 N.E. 273; Johnson v. Pulidy, 116 Conn. 443, 165 A. 355; S. S. Kresge Co. v. Fader, supra; 38 Am.Jur. 763, Par. 102. The propriety of a nonsuit ordered by the Court is tested in the same manner. Spickernagle v. C. S. Woolworth & Co., 236 Pa. 496, 84 A. 909, Ann.Ca.1914A, 132; Schnatterer v. Bamberger et al., 81 N.J.L. 558, 79 A. 324, 34 L.R.A.,N.S., 1077, Ann.Cas.1912D, 139, 1 N.C.C.A. 669.

A jury might have found that the fact of plaintiff's fall in the aisle of defendant's store proved it was not a safe place, or even a reasonably safe place, for her unless it believed that the fall resulted from her own negligence in whole or in part. Whether the floor was in fact safe, or reasonably so, is not the issue, but rather whether the defendant is chargeable with negligence for a failure to use reasonable and ordinary or due care to that end. There is no complication resulting from the presence of some foreign substance other than moisture on the floor, when it would be necessary to determine whether the proprietor knew of its...