Shea v. First Nat. Stores, Inc.
| Decision Date | 28 June 1939 |
| Docket Number | No. 8105.,8105. |
| Citation | 7 A.2d 196 |
| Parties | SHEA v. FIRST NAT. STORES, Inc. |
| Court | Rhode Island Supreme Court |
Exceptions from Superior Court, Newport County; Philip C. Joslin, Judge.
Action of trespass on the case by Mary C. Shea against the First National Stores, Inc., for injuries sustained by the plaintiff when she slipped on a grape on floor of defendant's store. On plaintiff's exception to ruling of the trial justice granting defendant's motion for nonsuit.
Exception overruled and case remitted to the superior court for entry of judgment on the nonsuit.
Sheffield & Harvey and J. Russell Haire, all of Newport, for plaintiff.
Henry M. Boss, of Providence, for defendant.
This is an action of trespass on the case for negligence. The case was tried before a justice of the superior court sitting with a jury and, at the conclusion of the plaintiff's evidence, the trial justice granted the defendant's motion for a nonsuit. The case is before us on the plaintiff's exception to this ruling.
The evidence shows that in the late forenoon of September 11, 1936, the plaintiff, a customer of the defendant, slipped on a grape, which she had not noticed, on the hardwood floor of the store. According to her testimony, the grape was near a counter on which were displayed vegetables and fruit, including grapes of the same kind as that on which she slipped. There is no testimony from her or from any one else showing how the counter was constructed, or the manner in which the grapes were displayed thereon, or where the grape was located on that counter in relation to the floor.
John R. McCarthy, also a customer, who was standing near the vegetable and fruit counter, testified that when he entered the store there were a few grapes and a little vegetable matter on the floor near the counter; that he pushed them aside with his foot, and that he had been in the store "about three or four minutes, probably less", when the plaintiff fell near where he was standing.
The single count of the plaintiff's declaration charges the defendant with failure "to use reasonable care to keep the premises in a safe condition for the use of said plaintiff." The testimony clearly shows that the case was tried solely on this theory. The general rule is that if the plaintiff alleges in the declaration negligence in certain particulars as the sole foundation of the action, negligence in these particulars must be proven to sustain the action. Faubert v. Shartenberg's Inc., 59 R.I. 278, 195 A. 218, 219. Capuano v. American Locomotive Co., 31 R.I. 166, 170, 76 A. 435; McGinn v. United States Finishing Co., 27 R.I. 58, 60 A. 677.
The plaintiff contends that the defendant is chargeable with actual knowledge of the dangerous condition of the floor, arguing that "The grapes being in the container where they were, defendant must know that they are apt to fall from the container to the floor and cause a slippery and dangerous condition, in view of their location on the vegetable counter." There is no basis for this statement, either in the allegations of the declaration or in the testimony adduced at the trial. The declaration does not allege and the proof does not show the kind of container in which the grapes were, or how the grapes were placed in that container, or where the container was located on the vegetable counter in relation to the particular part of the floor where the plaintiff walked.
In the absence of specific allegations and proof we cannot assume, any more than the trial justice could, that the container was defective, or that the grapes were improperly placed therein, or that the container was so located on the vegetable counter that, because of any or all of these conditions, the grapes were apt to fall on the floor, and especially at the place where the plaintiff fell. Having gone to trial on the merits on the only ground of negligence alleged in her declaration, it is too late for the plaintiff to now shift her position and attempt to avoid an adverse ruling by relying on an entirely different ground. During the entire trial she was apparently satisfied to rest on the ground of negligence set forth in the declaration, as she made no motion for an amendment thereof.
The case of Royer v. Najarian, R.I, 198 A. 562, upon which the plaintiff relies to support her contention that the defendant had actual knowledge of the dangerous condition of the floor in the instant case, involved a method of construction and the use of certain material in such construction, which reasonably might...
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