Williamson v. F. W. Woolworth Co.

• Decision Date: 08 June 1959
• Docket Number: No. 41202,41202
• Citation: 112 So.2d 529,237 Miss. 141
• Parties: Billy P. WILLIAMSON v. F. W. WOOLWORTH CO.
• Court: Mississippi Supreme Court

Page 529

112 So.2d 529

237 Miss. 141

Billy P. WILLIAMSON v. F. W. WOOLWORTH CO.

No. 41202.

Supreme Court of Mississippi.

June 8, 1959.

Lee V. Prisock, Jackson, for appellant.

Jackson & Ross, Jackson, for appellee.

LEE, Justice.

Billy P. Williamson sued F. W. Woolworth Company to recover damages for personal injuries sustained when he allegedly slipped on a banana peeling and fell in the store of the defendant in the city of Jackson. At the close of the evidence for the plaintiff, the court granted a directed verdict and judgment for the defendant; and Williamson appealed.

Williamson, who was 52 years of age and a carpenter by trade, testified that he went into the store between 1:30 and 2:00 o'clock in the afternoon of October 31, 1957, to buy Coping Saw Blades. After making the purchase, as he was walking along an aisle, about four and one-half feet wide, toward the front door, he stepped on a banana peeling, fell to the floor, and was painfully and substantially injured. The peeling was black. It was not fresh and had been off of the banana for sometime. Several pieces of the peeling were lying in the aisle, where he had fallen, and he picked off a part of the peeling which had stuck to the bottom of his shoe.

John Swanigan, in the store at the time, saw Williamson as he fell upon the floor and helped to pick him up. He said that the man slipped on a banana peeling as he was walking toward the front of the store. About half of the peeling lying there appeared to have been stepped on, and the marks were still on the tile floor. It was on the left side of the aisle, going out, and, in his opinion, had not been there 'too long'.

R. L. Dillon, manager of the store, called as an adverse witness, admitted that he found on the floor the banana peeling that Williamson claimed to have slipped on, and that it was old, dark in color, and in one large and two small pieces. There was a dirty spot, about five inches in diameter and two or three feet from the peeling, where someone perhaps had spilled water and the dust accumulated. He testified to the following custom: Upon closing the store in the evening, the porters sweep the floors clean. About 8:30 in the morning, they sweep behind the counters and pick up trash. Between 10:00 and 10:30 A.M. they go through the aisles and pick up trash or anything on the floor; and sometime between 1:00 and 3:00 o'clock in the afternoon, depending on the condition of the floor, they make an inspection and sweep up trash. Bananas were not sold in the store, but banana splits are served in the food departments, one in the front and the other in the rear. However, the bananas are peeled at the counter, and the peelings are then placed in garbage cans and dumped each night. The distance between the food department and the place where Williamson fell was about 50 feet. The so-called noon rush lasted from 11:00 A.M. until 2:00 P.M. He admitted that he secured a cab and sent Williamson to a doctor. In his direct examination, he also testified to certain matter in defense of the action, but which it is not necessary to detail here.

A doctor testified to the extent of the injury, together with the amount of the charge for his services.

The applicable principle in this cause is succinctly stated in 65 C.J.S. Negligence Sec. 51, p. 545, as follows: 'In order to impose liability for injury to an invitee, the dangerous condition must have been known to the owner or occupant or have existed for such time that it was his duty in the exercise of ordinary care to know of it.' The two cases of Yazoo & M. V. R. Co. v. Hawkins, 159 Miss. 775, 132 So. 742, and 163 Miss. 505, 140 So. 873, while involving the liability of carriers, announced the same rule as stated above.

The appellee contends that, under the numerous authorities cited by it, and especially Wallace v. J. C. Penney Co., Inc., Miss., 109 So.2d 876, 880, in which several prior decisions of this Court were reviewed, the trial court was warranted in granting the directed verdict. That case, however, was submitted to the jury, and it found a verdict for the storekeeper. Although an instruction for the appellee was held to be improper, the Court said that it did not constitute reversible error. From a consideration of the whole record, the peremptory instruction would have been properly given and Rule 11 of this Court was cited. In other words, the right result was reached, the Court saying: 'The wet and dirty condition of the floor of the foyer was caused by the continuing rains and by public use of the entrance-way. It was not caused by appellee, and the evidence does not indicate any failure by appellee in its duty to maintain its premises in a reasonably safe condition, under the circumstances prevailing at the time. Since the verdict and judgment was for the company, the right result was reached.' Without attempting to give an analysis of the other cases, it is enough to say that the facts and circumstances therein were somewhat different from the facts in the present case.

In Hale v. Safeway Stores, Inc., 129 Cal.App.2d 124, 276 P.2d 118, 120, a California case (1954), Mrs. Hale, a customer, slipped on a banana and fell. Upon regaining consciousness she saw 'a squashed banana on the floor, a mark on the floor which her shoe had made and banana on her dress, shoe and hose.' She, of course, did not know how long the banana had been on the floor, or how it got there, and there was 'no direct evidence as to the length of time the banana had been on the floor.' The record showed that 'no inspection of the area had been made for a period of from 12, 15, 30 or more minutes before the accident.' The manager went to the scene immediately and saw the banana on the floor. He said it had 'some small teeth marks in one end' but it had not been peeled. From this it was contended that a small child, trying to bite into the fruit, and failing, must have dropped it on the floor. But there was 'no evidence of any children in the store'. The trial court, at the close of the plaintiffs' evidence, granted the defendant's motion for a nonsuit. The District Court of Appeal, in reversing the judgment, cited Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 184 P.2d 708, 712, as follows: 'The true rule is that, while plaintiff must prove...