Moore v. American Stores Co.

• Decision Date: 15 January 1936
• Docket Number: 65.
• Citation: 182 A. 436,169 Md. 541
• Parties: MOORE v. AMERICAN STORES CO. [a1]
• Court: Maryland Court of Appeals

182 A. 436

169 Md. 541

MOORE v. AMERICAN STORES CO. ^[a1]

No. 65.

Court of Appeals of Maryland

January 15, 1936

Appeal from Superior Court of Baltimore City; Eugene O'Dunne Judge.

Action by Anna Moore against the American Stores Company.Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Argued before BOND, C.J., and URNER, OFFUTT, SHEHAN, and JOHNSON JJ.

Leonard Weinberg and Howard A. Sweeten, both of Baltimore, for appellant.

Walter L. Clark, of Baltimore (Clater W. Smith, of Baltimore, on the brief), for appellee.

OFFUTT Judge.

This appeal is from the judgment entered on a directed verdict for the defendant in the superior court of Baltimore city in an action brought by Anna Moore against the American Stores Company, a corporation, to recover compensation for injuries which she is said to have sustained as the result of a fall alleged to have occurred while she was in defendant's store as a patron, which, she charged, was caused by defendant's negligence in permitting that part of the floor on which she fell to be in a greasy and unsafe condition.

There was in the case evidence tending to prove these facts: Anna Moore, at the time of the accident, was about fifty years old; she lived with her two sisters on North Caroline street in Baltimore, Md.On Wednesday, August 30, 1933, at the request of one of the sisters, she went to the defendant's store at Federal and Bond streets in Baltimore to make some purchases.That store had two entrances, one on Bond street, the other on Federal street.To the left of one entering the Federal street entrance there is a "fish trough," beyond that and on the same side a "meat block," and further on "in the rear of the store is a refrigerator in which meats are kept on the other side of the store is a grocery counter."

Miss Moore, upon entering the store, made some purchases at the meat counter, she then went to the grocery counter, and then started to return to the Federal street entrance.On her way out, as she passed the meat counter, her two feet went from under her, and she"sat right down" and her hands "went on the floor" as she tried to catch herself.She was unable to get up, but was helped to her feet and placed on a lard can near the door where she could get some air.When she got up, she noticed dirty grimy grease on her hands, and that the floor where she fell was dark and "more greasy than the rest of the floor."The rest of the floor was dark, but not as dark and greasy as where she fell.When she fell, she skidded towards the door, and there were on the floor two marks, lighter than the rest of the floor, where "the heel of the foot slid right across the floor."She was taken to her home, and her sister, who attended her there, noticed grease on the back of her dress and grease on her hands, dirty, black, grimy grease, and there was on the sole of one of her shoes a piece of some kind of grease which looked like bacon, which had been walked on.The skid marks were from a foot to two feet in length, in front of the meat block, and were lighter than the rest of the floor.There was also evidence tending to prove that as a result of the fall Miss Moore suffered severe, painful, and permanent injuries.

Upon that evidence, the court granted two prayers; one, the usual demurrer prayer, the other, that "the testimony produced by the Plaintiff is equally consistent with either of two theories, that she fell because the floor was slippery from grease, or that she fell because she had a piece of bacon on her shoe causing her to slip; that as to one of these causes there is no evidence legally sufficient to show negligence or want of care on the part of the Defendant; that as the Plaintiff has failed to meet the burden of showing that a cause for which the Defendant is legally responsible produced the injury to the Plaintiff, the verdict of the Jury must be for the Defendant."The questions presented by the appeal are (1) whether the evidence summarized above was legally sufficient to support a conclusion that the accident of which the appellant complains was caused by the appellee's negligence, and (2) assuming that it established facts which would inculpate the appellee, did it also establish other facts which would exculpate it, without pointing out definitely and certainly whether the accident was caused by the one set of facts or the other?

The proposition involved in the first question definitely lacks reality.Assuming the truth of the appellant's evidence, together with all inferences which may legitimately be drawn therefrom which tend to support her claim, and so much was conceded by the demurrer prayer, three inferences may rationally be drawn: (1) That the floor was greasy; (2) that because of that condition it was slippery and unsafe; and (3) that as a result of its slippery and unsafe condition the appellant fell and was injured.

Assuming, for the question only, that the floor was greasy, slippery, and unsafe, and that appellant's injuries resulted from that condition, the controlling question is, Were those facts legally sufficient to show that her injuries were caused by appellee's negligence?

The appellee maintained a general grocery and provision store which it invited the public to attend and patronize, for their convenience and its profit.It was under a plain duty to exercise reasonable care to maintain its premises in such a condition that persons accepting its invitation would not be subjected to any risk or danger arising from the physical state of its property except such as was naturally and ordinarily incident to the nature of its business.Restatement of Law of Torts, American Law Institute, § 343;Benesch & Sons v. Ferkler,153 Md. 680, 683, 139 A. 557;Dickey v. Hochschild, Kohn & Co.,157 Md. 448, 450, 146 A. 282;Grzboski v. Bernheimer-Leader Stores,156 Md. 146, 148, 143 A. 706.It has been said 33 A.L.R. 186, that one "who invites the public on his premises to inspect and purchase goods is held to a higher or greater degree of care and diligence than otherwise," but that statement of the law is not entirely accurate.The inviter, under such circumstances, is under no duty to exercise any higher or greater or different degree of care than any other inviter would be, but, to discharge the duty imposed upon him of exercising ordinary care for the safety of business visitors to his premises, he may be required to take different measures or precautions than would one who invited others to his private residence for purposes of social intercourse or even business.Restatement of Law of Torts, § 343, comment e. " 'Ordinary care' is also a relative term, the meaning of which varies with the nature and character of the object to which it is applied ( Merrifield v. C. Hoffberger Co.,147 Md. [ 134] 141, 127 A. 500), and conduct which under one set of circumstances would constitute ordinary care might under others be wholly insufficient to gratify the demands of that term."Dickey v. Hochschild, Kohn & Co.,157 Md. 448, 451, 146 A. 282, 283.Just as the measures taken by the bailee of a quantity of scrap iron to protect it from theft, while sufficient to constitute ordinary care for that purpose, might be wholly insufficient to constitute ordinary care if taken for the protection of gold or bearer bonds or jewelry.That distinction is clearly and accurately shown in the Restatement in the following language used in Restatement of Law of Torts, American Law Institute, § 343, comment e, p. 943: "One who enters a private residence even for purposes connected with the owner's business, is entitled to expect only such preparation as a reasonably prudent householder makes for the reception of such visitors.On the other hand, one entering a store, theatre, office building or hotel, is entitled to expect that his host will make far greater preparation to secure the safety of his patrons than a householder will make for his social or even his business visitors."

Applying those principles, which appear to be quite well settled and generally accepted, to the facts of this case, it cannot be said as a matter of law that the evidence permitted no rational inference that appellant's fall was caused by the appellee's negligence.That evidence is quite clear that the floor on which appellant slipped and fell was dark and that its condition was not apparent to one using the facilities of the store in an ordinary way.That part of it on which appellant fell was adjacent to the meat counter, and was greasy and slippery, so slippery that defendant's feet went from under her, she slid or skidded on it, and the heels of her shoes left distinct skidmarks lighter in color than the rest of the floor.It cannot be assumed that, if appellee knowingly permitted its floor to be in a greasy and unsafe condition, it had fully discharged its duty to exercise ordinary care for the protection of persons whom it had invited to its store.Appellee's reply to that conclusion is (1) the fact that the floor was greasy is no evidence of negligence, and (2) that the fact that the floor was "greasy looking" merely created the inference that at some indefinite time in the past it had been oiled.The answer to the second criticism is that there was no evidence of any kind that the floor had ever been oiled.It may have been oiled, waxed, painted, greased, of dark wood or merely dirty, so that no inference that it had been oiled is compelled by the fact that it was dark or by evidence that it was greasy.The other criticism, that the fact that the floor was greasy "does not prove negligence," is true only to this extent, that while in itself it may or may not have proved negligence, it was certainly evidence of negligence, and, if shown to have existed under...