Taylor v. J. M. McDonald Co.

• Decision Date: 16 January 1953
• Docket Number: No. 33205,33205
• Citation: 156 Neb. 437,56 N.W.2d 610
• Parties: TAYLOR v. J. M. McDONALD CO.
• Court: Nebraska Supreme Court

Page 610

56 N.W.2d 610

156 Neb. 437

TAYLOR v. J. M. McDONALD CO.

No. 33205.

Supreme Court of Nebraska.

Jan. 16, 1953.

Syllabus by the Court.

1. A person who enters a store for the purpose of making a purchase is an invitee and the owner of the store must use reasonable care to keep the premises reasonably safe for the use of the invitee, but the owner is not an insurer against accident.

2. In testing the sufficiency of evidence to sustain a verdict it must be considered in the light most favorable to the successful party.

3. A judgment and verdict will not be reversed when the record discloses that there was competent evidence to sustain the finding of the jury.

4. Where the evidence shows that plaintiff discovered chewing gum on the heel of her shoe after slipping and falling, and there is evidence that gum was found on the floor which had been scuffed over as if done by a person slipping upon it, the jury can properly infer that the gum deposit was the proximate cause of her fall.

5. Where the evidence shows that plaintiff slipped on a wad of chewing gum on the floor, which had been there for two weeks or more, it will sustain a finding that defendant in the exercise of reasonable care to keep the premises in safe condition for the use of customers should have found and removed it.

Stiner & Boslaugh, Hastings, for appellant.

Anderson, Storms & Anderson, Holdrege, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL and WENKE, JJ.

CARTER, Justice.

This is an action to recover damages for personal injuries sustained by plaintiff on April 4, 1950, when she fell on the floor in one of the aisles of defendant's department store while patronizing the store as a customer. The jury returned a verdict for the plaintiff in the amount of $1,250. The defendant appeals.

The evidence shows that plaintiff entered the store at the south entrance at the west side of the building. She proceeded north in the west aisle of the store. A number of 10-foot counters extended practically the full length of the building on the west side of the aisle and the east side was occupied by a number of tables placed end to end, each of which was about eight feet in length with approximately three-foot spaces between them. The aisle was about four feet wide. Plaintiff testified that as she proceeded north the floor of the aisle appeared normal and that she saw nothing on the floor that appeared to be hazardous. She stopped at the third counter on the west side and made a purchase. She accompanied the clerk across the aisle to the wrapping counter and, after receiving her merchandise and paying for the same, she turned and started down the aisle towards the south store entrance. As she did so her foot slipped, which threw her against the first table with such force that she was thrown against the counter on the west side of the aisle and finally fell, striking her face against the second table south on the east side of the aisle. She was helped to her feet by employees in the store, at which time she observed gum on the heel of her left shoe. She says she felt her foot stick on something and that the gum on the heel of her shoe was sticky. She suffered injuries which are described in the record. We shall not describe them here for no objection is made to the amount of the verdict if liability is established under the law and the evidence.

The janitor of the building testified that he found a wad of gum near the spot where he was told that appellee fell, which he described as being as large as a half dollar and one quarter inch in thickness. He said: 'It seemed to be broken off a little bit like somebody had skuffed over it or something, or hit it with her foot.' He further stated that he scraped up the gum, that it was dry underneath, and that it was sort of greasy and slick-like. He testified further that the gum had been oiled over and that the oil had not penetrated to the floor.

The store manager testified that he talked with appellee before she left the store and that she then informed him that she had slipped on some gum. The clerk who waited on appellee testified that there was no gum at the point where appellee said she slipped. The store manager saw the gum on appellee's shoe and on the floor. He was unable to state at what point on the floor the gum was found.

The store manager testified that the floors were mopped with a commercial preparation, sometimes every six weeks and sometimes as far apart as two or three months. The floor had not been treated for at least two weeks. The gum in question had been mopped over so that it had been there at least two weeks. The oil preparation had not penetrated through the gum to the floor, as the floor was dry when the gum was removed. The evidence is in conflict as to the thickness and quantity of gum that was found on the floor. There was no general practice regarding the removal of gum from the floor, the janitor testifying that he removed it only as he found time to do so. There was evidence of the custom of operators of similar stores regarding the removal of gum from floors. No uniformity of practice was established, the evidence being very conflicting. There was evidence by such operators that persons had been known to slip and fall on gum deposits on similar floors. There was also evidence by equally experienced operators that they had never heard of anyone falling because of slipping on a gum deposit. There was also evidence that large gum deposits on floors were generally considered to be hazardous.

A person who enters a retail store for the purpose of making a purchase is an invited guest within the legal meaning of that term. The owner of such a store is required to maintain it in a reasonably sefe condition for customers. A customer is an invitee and the owner must exercise reasonable care to keep the building reasonably safe for his use, but the owner is not an insurer against accident. Rogers v. J. C. Penney Co., 127 Neb. 885, 257 N.W. 252; Rankin v. J. L. Brandeis & Sons, 135 Neb. 86, 280 N.W. 260.

The only question presented by this appeal is whether there was sufficient evidence of negligence on the part of the defendant to sustain the action of the trial court in submitting the case to the jury. The rule is that, where different minds may reasonably draw different conclusions from the evidence as to whether or not they establish negligence, the issues are for the jury. In Markussen v. Mengedoht, 132 Neb. 472, 272 N.W. 241, 243, we stated the rule in the following language: 'All that plaintiff was required to do was to establish, to a reasonable probability, that the accident happened in the manner alleged in his petition, and where facts and circumstances are established from which the way the accident happened could be logically inferred, it was not error to submit that issue to the jury.' Circumstantial evidence may properly be considered by the jury in connection with the direct evidence offered in determining if the defendant was negligent and, when controlling rules of law are properly complied with, circumstantial evidence alone may be sufficient to sustain a verdict. Scarborough v. Aeroservice, Inc., 155 Neb. 749, 53 N.W.2d 902. Nor...