Waters v. Harris

110 S.E.2d 283 (1959)

250 N.C. 701

Clarence H. WATERS v. Jesse Lee HARRIS and wife, Elizabeth Clark Harris.

No. 17.

Supreme Court of North Carolina.

September 23, 1959.

W. L. Whitley and W. M. Darden, Plymouth, for plaintiff, appellant.

Norman & Rodman, Plymouth, for defendants, appellees.

MOORE, Justice.

This appeal poses only one question for decision: Does plaintiff's evidence make out a prima facie case of injury by reason of actionable negligence of defendants?

When the competent evidence offered by plaintiff is considered in the light most favorable to him and he is given the benefit of every reasonable inference of fact to be drawn therefrom, we are of the opinion, and so hold, that it is sufficient to have been submitted to the jury and the demurrer to the evidence should have been overruled.

Persons entering a mercantile establishment during business hours to purchase or look at merchandise do so at the actual or implied invitation of the proprietor, upon whom the law imposes the duty of exercising ordinary care (1) to keep the aisles and passageways where customers are expected to go in a reasonably safe condition, so as not unnecessarily to expose the customer to danger, and (2) to give warning of hidden dangers or unsafe conditions of which the proprietor knows or in the exercise of reasonable supervision and inspection should know. However, the *286 proprietor is not an insurer of the safety of customers and invitees while on the premises and is only liable for injuries resulting from his negligence. Lee v. H. L. Green & Co., 236 N.C. 83, 85, 72 S.E.2d 33. Appellees do not challenge these principles of law. On the contrary they quote, in their brief, to the same effect from Brown v. Montgomery Ward & Co., 217 N.C. 368, 371, 8 S.E.2d 199.

Cases involving injury from slippery substances in the aisles and passageways of stores and other establishments usually fall into one of two categories. (1) Where the substance is placed on or negligently applied to the floor by the proprietor or his servants or employees. In such cases the proprietor is liable if injury to an invitee proximately results. And the injured party is under no duty to show that the proprietor had actual or constructive notice of the presence of the slippery substance. A person is deemed to have knowledge of his own and his employees' acts. The following are illustrative of this type of case: Copeland v. Phthisic, 245 N.C. 580, 96 S.E.2d 697, 63 A.L.R.2d 587; Hughes v. Anchor Enterprises, Inc., 245 N.C. 131, 95 S.E.2d 577, 63 A.L.R.2d 685; Lee v. H. L. Green & Co., supra. (2) Where the slippery substance is placed on the floor by a third party or where there is no evidence of the source thereof. In such cases an invitee proximately injured thereby may not recover unless it is made to appear that the substance had remained there for such length of time that the proprietor knew or by the exercise of reasonable care should have known of its existence. Examples of this class of cases are: Pratt v. Great Atlantic & Pacific Tea Co., 218 N.C. 732, 12 S.E.2d 242; Fox v. Great Atlantic & Pacific Tea Co., 209 N.C. 115, 182 S.E. 662; Cooke v. Great Atlantic & Pacific Tea Co., 204 N.C. 495, 168 S.E. 679.

Appellees contend that the instant case is of the second category above and is controlled by the principles laid down in Pratt v. Great Atlantic & Pacific Tea Co., supra. Indeed this seems to have been the basis of the court's ruling below.

In the Pratt case, a customer in defendant's store was injured when she slipped and fell by reason of a greasy, oily substance on the floor. She alleged that defendant was negligent in permitting the substance to be and remain on the floor. There was no evidence as to how the oil or grease was put there or how long it had been there. A judgment of involuntary nonsuit was affirmed by this Court on appeal. The Court's opinion says in part:

"When claim is made on account of injuries caused by some substance on the floor along and upon which customers will be expected to walk, in order to justify recovery, it must be made to appear that the proprietor either placed or permitted the harmful substance to be there, or that he knew, or by the exercise of due care should have known, of its presence in time to have removed the danger or given proper warning of its presence. Thus, before plaintiff can be permitted to recover she must first offer evidence tending to show (1) negligent construction or maintenance resulting in a condition which would cause a person of ordinary care to foresee that some injury was likely to result therefrom; and (2) express or implied notice of such condition. (Citing authorities)." [218 N.C. 732, 12 S.E.2d 243.]

In the instant case, if we consider only the one circumstance, the puddle of grease or oil on the floor, there is an apparent similarity to the facts of the Pratt case. In the case at bar there is no direct evidence tending to show who put the grease on the floor or how long it had been there. But there is a combination of circumstances here that factually differentiates this case from the Pratt case. (1) Plaintiff's evidence tends to show neglect and inattention on the part of the defendants with respect to their duty to maintain the warehouse *287 floor in a reasonably safe condition for customers and invitees. It "was rough, greasy looking, trash all over the floor. * * * The color of the floor was dark." Besides, it was reasonably foreseeable that grease and oil was likely to leak from motors and other moving parts of the secondhand refrigerating equipment displayed by defendants. (2) Plaintiff's evidence tends to show that defendants failed to provide adequate artificial lighting and failed to use the available facilities for letting in sufficient natural light to enable plaintiff to see where he was walking. (3) Plaintiff's evidence tends to show that the male defendant had personal notice of the condition of the warehouse floor and the lack of adequate lighting since he was present at the time and was personally conducting the plaintiff in the inspection of the equipment.

"Negligence may consist in the failure so to light the premises as to protect from injury by reason of dangerous conditions which would not reasonably be discovered in the absence of such light. * * *" 65 C.J.S. Negligence § 86, pp. 595-596. The following are cases in which absence of light or inadequacy of light sufficient to disclose unsafe conditions was held to be negligence proximately causing injury: Thompson v. DeVonde, 235 N.C. 520, 70 S.E.2d 424; Drumwright v. North Carolina Theatres, 228 N.C. 325, 45 S.E.2d 379; Anderson v. Reidsville Amusement Co., 213 N.C. 130, 195 S.E. 386; Nelson v. Great Atlantic & Pacific Tea Co., 1958, 48 N.J.Super. 300, 137 A.2d 599; Gunn v. Saenger-Ehrlich Enterprises, Inc., La.App., 1939, 192 So. 744; Lunny v. Pepe, 1933, 116 Conn. 684, 165 A. 552; Crouse v. Stacy-Trent Co., 1933, 110 N.J.L. 124, 164 A. 294; Petera v. Railway Exchange Bldg., Mo. App.1931, 42 S.W.2d 947.

It is our opinion that the record in this case discloses sufficient evidence of negligence proximately causing injury to require submission to the jury. Indeed it seems prima facie to satisfy the enumerated prerequisites for recovery set out in the Pratt case.

Both in the brief and in the oral argument in Supreme Court defendants seriously contended that plaintiff's evidence showed conclusively that the proximate cause of his injury was the presence of a large billfold in plaintiff's pocket. The evidence disclosed that plaintiff was carrying in his hip pocket a billfold 5 inches long and 3 inches thick, that he fell on this hip and fractured a hip bone adjacent to the billfold. Suffice it to say that the carrying of a billfold in this manner is such an universal practice, attended with consequences of harm so infinitesimal, except for assault and robbery, that the plaintiff was under no duty to foresee that injury would result therefrom. That circumstance was not the proximate cause of the alleged injury in this case.

Appellees also contend that plaintiff was contributorily negligent as a matter of law. Drumwright v. North Carolina Theatres, supra [228 N.C. 325, 45 S.E.2d 381], is a case somewhat similar to the one at bar. In that case the plaintiff was directed by defendant into a dark part of a theatre. This Court said: "Unless obviously dangerous, the conduct of a plaintiff which otherwise might be pronounced contributory negligence as a matter of law would be deprived of its character as such, if done at the direction of the defendant or its agent. (Citing authorities.) Here, the plaintiff and her companions were directed by defendant's agent to go to the balcony for seats. In following this direction, plaintiff was injured. The case is one for the jury." A nonsuit on the ground of contributory negligence will be granted only when the plaintiff's evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom. Keener v. Beal, 246 N.C. 247, 252, 98 S.E.2d 19.

The judgment below is

Reversed.

HIGGINS, J., not sitting.