Lee v. H. L. Green & Co., 671

• Decision Date: 22 August 1952
• Docket Number: No. 671,671
• Citation: 236 N.C. 83,72 S.E.2d 33
• Court: North Carolina Supreme Court
• Parties: LEE, v. H.L. GREEN & CO., Inc.

Page 33

72 S.E.2d 33

236 N.C. 83

LEE, v. H.L. GREEN & CO., Inc.

No. 671

Supreme Court of North Carolina.

Aug. 22, 1952

H. L. Koontz and Clyde A. Shreve, Greensboro, for plaintiff-appellant.

Smith, Sapp, Moore & Smith, Greensboro, for defendant-appellee.

JOHNSON, Justice.

The evidence in this case when analyzed in the light of the controlling principles of law is sufficient, we think, to make out a prima facie case of actionable negligence for the jury.

Those entering a store during business hours to purchase or look at goods do so at the implied invitation of the proprietor, upon whom the law imposes the duty of exercising ordinary care (1) to keep the aisles and passageways where customers are expected to go in a reasonably safe condition, so as not unnecessarily to expose the customer to danger, and (2) to give warning of hidden dangers or unsafe conditions of which the proprietor knows or in the exercise of reasonable supervision and inspection should know. Ross v. Sterling Drug Store, 225 N.C. 226, 34 S.E.2d 64; Watkins v. Taylor Furnishing Co., 224 N.C. 674, 31 S.E.2d 917; Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E.2d 199; 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.

However, such proprietor is not an insurer of the safety of customers and invitees who may enter the premises, and he is liable only for injuries resulting from negligence on his part. Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242; Bowden v. S. H. Kress & Co., supra.

Moreover, the doctrine of res ipsa loquitur does not apply to injuries resulting from slipping or falling on the floor of a store which has been oiled. Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E.2d 536; Parker v. Great Atlantic & Pacific Tea Co., supra; Bowden v. S. H. Kress & Co., supra.

Therefore, it is not negligence per se to have an oiled floor in a store, or to apply oil to a floor, if it is applied in a reasonably prudent manner. The standard of care which the law requires of a storekeeper in oiling floors is that degree of care which persons of ordinary care and prudence are accustomed to use in oiling floors, having due regard both for the objects to be accomplished and the rights of those who are expected to frequent the store. Thus, in order for an injured person to recover in such a case, ordinarily there must be evidence sufficient to support the inference that from want of ordinary care on the part of the proprietor thte floor was improperly oiled and left in an unsafe condition. Parker v. Great Atlantic & Pacific Tea Co., supra; Bowden v. S. H. Kress & Co., supra. See also: 38 Am.Jur., Negligence, Sec. 136, p. 798; 65 C.J.S., Negligence, § 81, p. 589.

We think the evidence here, when viewed with the degree of liberality required on motion for nonsuit, was sufficient to sustain, though not necessarily to impel, a jury finding of all the essential elements of actionable negligence: (1) That prior to the plaintiff's fall the defendant had applied or caused to be applied upon and allowed to remain on its basement floor an oily floor dressing or covering of some type which was of a slick and slippery nature, and respecting which the defendant failed to exercise ordinary care by permitting it to be applied and to accumulate and remain on the floor in such quantities and condition, more in some places than in others and dry in some places and wet in others, so as to render unsafe passage along and about the aisles and display counters where customers and invitees were expected to go, thus creating a danger which in the exercise of ordinary care was not observable by the plaintiff but of which the defendant was chargeable with notice and failed to exercise due care to give plaintiff warning; and (2) that the plaintiff slipped and fell at a place in the aisle where, from want of due care on the part of the defendant, the oily substance had been applied in excessive quantity or left wet upon the floor without timely notice, and that the plaintiff's fall and injuries resulted from the unsafe condition so created and existing, and were proximately caused by the improper and negligent manner in which the oily floor dressing was so applied or left by the defendant on the floor without notice to the plaintiff.

That the evidence offered below is sufficient to carry the case to the jury is supported by well-considered decisions of this Court, among which these seem to be closely in point: Bowden v. S. H. Kress & Co., supra; Parker v. Tea Co., supra; Anderson v. Reidsville Amusement Co., 213 N.C. 130, 195 S.E. 386. Also, for numerous supporting decisions from other jurisdictions, see Annotations: 33 A.L.R. 181; 43 A.L.R. 866; 46 A.L.R. 1111; 100 A.L.R. 710; 162 A.L.R. 949.

In Parker v. Tea Co., supra [201 N.C. 691, 161 S.E. 209], the controlling facts are strikingly similar to those shown by the evidence in the instant case. In the Parker case, the plaintiff slipped and fell in a grocery store as she was walking toward the meat counter. The fall occurred on Monday morning after the floor had been oiled the previous Saturday night. The gist of plaintiff's narrative of the occurrence is as follows: '\Both feet slipped out from under me. * * * There was a damp place on the floor, looked like oil. It appeared to be oil and had dried more in some places than in others. Where I stepped was one of the damp places. Some of the planks at this place looked practically dry, and then there were streaks on them that looked damp as if it was damp with oil and it was more so in the place where I walked. * * * There seemed to be on part of the boards little streaks that didn't seem to be perfectly dry. I could detect the exact point where I slipped and at that point there was a greater accumulation of oil * * * My hose had a big spot of oil on them.' ' The evidence offered was held sufficient to support the inference that the floor was improperly oiled, and Bowden v. S. H. Kress & Co., supra, was cited as controlling authority.

The defendant seeks to distinguish the instant case from Parker v. Tea Co., supra, on the ground that here there is no direct evidence, as in the Parker case, that the defendant had caused the floor to be oiled. True, in the instant case, the plaintiff offered no direct testimony respecting when or by whom the alleged oily dressing was applied to the floor, or concerning the exact descriptive character of the substance found on the floor. Nor did anyone testify concerning the mode of procedure followed in applying the oil.

However, where, as here, a complaining party offers evidence tending to show a slick, oily floor condition, existing under circumstances pointing to some general type of previous oil treatment, showing fresh oil in some places and dry in others, thus indicating the application or accumulation of more oil in some places than others, we think the case may not be withdrawn from the jury simply because the plaintiff or her witnesses did not see the oil applied or know when or by whom it was applied or relate the precise details respecting the kind and quantities of oil applied or the mode of procedure followed in applying it. Where the facts in respect to these things are reasonably inferable from the plaintiff's evidence, as in the present case, it is not imperative, under pain of suffering a nonsuit, that the plaintiff go further and indulge in the exploratory procedure of looking for bystanders who were present when the floor was oiled, or calling to the stand employees of the defendant who may have first hand knowledge of the method followed in applying the oil. The essentials of a prima facie case do not require any such intensity of proofs nor precision as to details. 38 Am. Jur., Negligence, Sec. 333; 65 C.J.S., Negligence, § 243, pp. 1068 and 1074; Hulett v. Great Atlantic & P. Tea Co., 299 Mich. 59, 299 N.W. 807; Bennesch & Sons v. Ferkler, 153 Md. 680, 139 A. 557, cited in Bowden v. Kress & Co., supra.

In the instant case the existence of these elements of actionable negligence are reasonably inferable from the whole of the evidence. Pertinent as bearing thereon are these portions of the testimony of the plaintiff's husband, who said he examined the floor: 'I looked all over it * * * all the way across it was greasy. * * * In some places grease and smudges on the floor were heavier * * * than in others. * * * In some places the oil or grease on the floor appeared to be dry. * * * It appeared to be fresh at some spots and dry at others. * * * The place where I observed my wife had fallen was slick.'

Also, an examination of the facts in Parker v. Tea Co., supra, discloses that the direct evidence that the floor was oiled, as well as the details of the procedure followed...