Summary
In Kroger Co. v. Troy, 122 Ind. App. 381, 105 N.E.2d 174 (1952), the Court held that the negligence issue is dependent on whether the care exercised was reasonable under the circumstances, regardless of whether a food market or a department store is involved.
Summary of this case from Tyrell v. Sears, Roebuck and Co.Opinion
No. 18,224.
Filed April 21, 1952.
1. NEGLIGENCE — Acts or Omissions Constituting Negligence — Personal Conduct — Ordinary or Reasonable Care — Food Market Owner's Duty to Invitees — Question of Fact. — A different rule of negligence does not apply to food markets than applies to department stores because of the additional hazards occasioned by the nature of the merchandise, but reasonable care remains a question of fact under the circumstances whether a food market or a department store is involved. p. 383.
2. NEGLIGENCE — Acts or Omissions Constituting Negligence — Condition and Use of Land or Buildings — Objects Placed on Floor — Lack of Knowledge by Storekeeper — No Negligence. — In an action for personal injuries alleged to have been sustained by the plaintiff who while in defendant's food market, slipped on a grease spot and fell, where there was no evidence that the defendant knew, or in the exercise of reasonable diligence could have known, of the fact of the alleged grease spot, the defendant could not be held guilty of negligence. p. 383.
From the Porter Superior Court, J.A. Fleishbein, Judge.
Action by Florence Troy against the Kroger Company for personal injuries alleged to have been sustained by plaintiff who slipped and fell in defendant's food market. From a judgment for the plaintiff, defendant appeals. Reversed with instructions. By the court in banc.
Walter C. Williams, Frederick H. Krueger, and Raymond M. Fox, Jr., all of Michigan City, for appellant.
Alvin D. Blieden, of Michigan City, for appellee.
This is an action for personal injuries alleged to have been sustained by appellee who slipped and fell in appellant's food market. Trial by the court resulted in a finding and judgment for $850.00.
The errors set out in appellant's motion for new trial and relied upon by appellant in this appeal are that the decision of the court is not sustained by sufficient evidence and is contrary to law.
The evidence on the issue of negligence (most favorable to appellee) is that the appellee, when near the exit and about to leave appellant's place of business, stepped upon what "appeared to be a greasy spot . . . about the size of a silver dollar," and "skidded into an iron bar by the door" and was injured.
The issue concerning the liability of a shopkeeper to his customer for objects upon the floor of the premises was recently before this court in the case of J.C. Penney, Inc. v. Kellermeyer (1939), 107 Ind. App. 253, 264, 19 N.E.2d 882, where, in discussing the sufficiency of evidence, the court held:
". . . An inference of fact in the instant case upon which to base negligence of the appellant in respect to the loose object on the floor would have to rest upon conjecture, guess work or speculation upon which verdicts cannot properly be based. There is no evidence that the object was upon the floor for any length of time whatever nor can a reasonable inference be drawn from the evidence that it did in fact remain on the floor for any length of time. There is no evidence whatever that the appellant or its agents or servants knew that the object was on the floor or that it was upon the floor for such time and under such conditions that in the exercise of reasonable care they should have known about it. There is no evidence in the case showing either actual or constructive notice to the appellant that the loose object was upon the floor. From the evidence no one can say what the loose object was."
The same rule was later affirmed by the Supreme Court of this state in the case of Robertson Bros. Department Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809.
It is contended that because of the additional hazards occasioned by the nature of the merchandise, a different rule of negligence applies to food markets than applies to 1. department stores generally. No authorities are cited in support of that position. It occurs to us that the rule of negligence is not changed; that reasonable care remains a question of fact under these circumstances.
As stated in the case of John Thompson Grocery Co. v. Phillips (1912), 22 Colo. Court of Appeals 428, 439, 125 P. 563: "But assuming that the grease was on the floor and was the cause of plaintiff's fall, before plaintiff can recover, there must be some evidence at least, tending to show that the defendant or its agents knew, or by the exercise of reasonable diligence could have known this fact, before it may be held guilty of negligence." (Our italics.)
There was no evidence in this case that appellant knew, or in the exercise of reasonable diligence could have known, of the fact of the alleged grease spot. Therefore, it cannot be 2. held guilty of negligence.
Judgment reversed with instructions to sustain appellant's motion for a new trial.
NOTE. — Reported in 105 N.E.2d 174.