Thompson v. Giant Tiger Corp. of Camden

• Decision Date: 28 January 1937
• Docket Number: No. 17.,17.
• Citation: 189 A. 649
• Parties: THOMPSON v. GIANT TIGER CORPORATION OF CAMDEN.
• Court: New Jersey Supreme Court

189 A. 649

THOMPSON

v. GIANT TIGER CORPORATION OF CAMDEN.

No. 17.

Court of Errors and Appeals of New Jersey.

Jan. 28, 1937.

Appeal from Supreme Court.

Action by Sarah Thompson against the Giant Tiger Corporation of Camden, New Jersey. Judgment for plaintiff, and defendant appeals.

Reversed.

Andrew M. Cella, of Trenton, for appellant.

Horace G. Brown, of Camden, for respondent.

WELLS, Judge.

On September 10, 1935, the plaintiff, Mrs. Sarah Thompson, accompanied by her husband, was a business visitor at the defendant's store in the city of Camden. She had just purchased a ten-pound bag of sugar at the grocery counter, when as she left the counter—being about two feet away—she slipped on something black on the floor and fell, and was injured. She brought suit against the defendant in the Supreme Court, alleging in her complaint that she was an invitee of defendant and while engaged in making purchases of merchandise she slipped on a piece of foreign substance, "which the defendant, knowingly and/or negligently, permitted to remain on its store floor for a long period of time," and was thereby injured; and she further alleged that the defendant was "negligent in failing to make reasonable inspection of its premises for the safety of the plaintiff and other customers."

The case was tried at the Camden circuit, the jury rendering a verdict in her favor for $3,500, and from the judgment entered on this verdict the defendant brings this appeal.

The defendant sets down seven gounds for reversal, only two of which are properly before us. The first has to do with the trial court's permitting the plaintiff to testify to statements which she claims the clerk who waited upon her made, as he "picked her up" from the floor. The second is that the trial court erroneously refused to grant a nonsuit.

The plaintiff's husband died before the trial and the plaintiff was the only witness to testify to the condition of the floor and the circumstances of her fall.

In answer to the question: "Mrs. Thompson what was it you slipped on?" She said: "Well, it was something black on the floor; there were several pieces of it."

She later spoke of the substance as "spots" and again as "it," saying that "it was fastened to the floor, that it was no part of the floor but stuck to the floor." She said that in company with her husband and the clerk, who had shown her these spots, she looked at them after her fall, but that she hadn't any idea what they were.

There was no testimony as to the length of time the black "spots" or "pieces" had been on the floor, or that the defendant or any of its agents had placed them there or knew of their presence.

The plaintiff, confronted with this predicament, endeavored to show, by her own testimony as to what the clerk said to her when he assisted her from the floor, that the defendant knew in the morning (the accident having occurred at 1:30 o'clock in the afternoon) of the presence of the substance on the floor and did nothing in the meantime to remedy the condition.

The trial court allowed the plaintiff to testify that when the clerk picked her up he said: "I am very sorry, lady, I am very sorry. I told the manager to have some one clean that up this morning; I don't see why it wasn't cleaned up."

The trial court admitted this evidence, over objection and exception, observing at the time that he thought that the statement the clerk made under the circumstances and conditions was admissible, adding: "How far it may affect the defendant is another question." In charging the jury, however, the court referred to the fact that there was no testimony in the case as to the substance that was on the floor that caused the plaintiff's fall, and that there was no "testimony as to how it got there or for how long it had been there other than the statement from the plaintiff that one of the clerks said he had told the manager that morning to have it cleaned up."

The law is fully settled in this state that a proprietor of a store is not an insurer but is merely liable (1) for defects of which he knows, or (2) defects which have existed for so long a time that, by the exercise of reasonable care, he had both an opportunity to discover and to remedy. Bader v. Great Atlantic & Pacific Tea Co., 112 N.J.Law, 241, 169 A. 687; Taylor v. Roth & Co., 102 N.J.Law, 702, 133 A. 386; Bodine v. Georke Co., 102 N.J.Law, 642, 133 A. 295. In the absence of proof of either, the legal presumption is that defendant had used reasonable care. Schnatterer v. Bamberger et al., 81 N.T.Law, 558, 79 A. 324, 34 L.R.A.(N.S.) 1077, Ann.Cas.1912D, 139.

"A mere fall of a person on the premises of another, without any evidence to show how the fall was occasioned, raises no presumption of negligence on the part of the owner, and the doctrine of res ipsa loquitur, which is only applicable when the thing shown speaks of the negligence of the defendant, not merely of the happening of the accident, does not apply." Garland v. Furst Store, 93 N.J.Law, 127, 107 A. 38, 5 A.L.R. 275.

The plaintiff contends that the remarks alleged to have been made by the clerk were properly admitted in evidence by the trial court for the reason that they were part of the res gestae, and, as authority for this contention, cites Hunter v. State, 40 N.J.Law, 495; State v. Kane, 77 N.J. Law, 244, 72 A. 39; Trenton Passenger Railway v. Cooper, 60 N.J.Law, 219, 37 A. 730, 38 L.R.A. 637, 64 Am.St.Rep. 592; Murphy v. George Brown & Co., 91 N.J. Law, 412, 103 A. 28; and other cases.

The defendant, on the other hand, cites Blackman v. West Jersey & Seashore Ry. Co, 68 N.J.Law, 1, 52 A. 370; Hayes v. Jersey City, H. & P. St. Ry. Co, 73 N.J.Law, 639, 64 A. 119, 120; Higgins v. Goerke-Krich Co, 91 N.J.Law, 464, 465, 103 A. 37; and other cases, and argues forcefully therefrom that the res gestæ was over at the time the clerk made the remarks attributed to him, and that the remarks therefor did not synchronize with the main occurrence—the fall—so as to be incidental to or practically a part of it, as res gestae.

Several of the cases cited on the...