Summary
holding evidence many persons walked without mishap on the floor, on the day plaintiff fell, barred recovery
Summary of this case from Bonelli v. U.S.Opinion
No. 42665.
May 6, 1963.
1. Negligence — owner of premises — invitee — injuries received from fall on floor — evidence insufficient to show negligence on part of defendant.
Business invitee who entered company's office, fell because feet slipped out from under her, and claimed to have noticed after falling that floor had been recently polished and was very slippery could not recover from company which had used customary polishing material, did not allow unusual amount of wax to accumulate, and showed that on day of fall, some 50 or more other persons walked over floor without mishap.
Headnote as approved by McGehee, C.J.
APPEAL from the Circuit Court of Harrison County; LESLIE B. GRANT, Judge.
Walter L. Nixon, Jr., Biloxi, for appellant.
I. Cited and discussed the following authorities: Alexander v. Zeigler, 84 Miss. 560, 36 So. 536; Bankston v. Dumont, 205 Miss. 272, 38 So.2d 721; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Dean v. Brannon, 139 Miss. 312, 104 So.2d 173; Gravette v. Golden Sawmill Trust, 170 Miss. 15, 154 So. 274; Johnston v. Canton Flying Services, Inc., 209 Miss. 226, 46 So.2d 533; Kirkland v. Harrison, 221 Miss. 714, 74 So.2d 820; Kurn v. Fondren, 189 Miss. 739, 198 So. 727; Patterson v. Sayers, 223 Miss. 444, 78 So.2d 467; Pearson v. Dixie Electric Power Assn., 219 Miss. 884, 70 So.2d 6; Planters Wholesale Grocery v. Kincade, 210 Miss. 712, 50 So.2d 578; Slyter v. State, 246 Miss. 402, 149 So.2d 489; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Western Union Telegraph Co. v. Blakely, 162 Miss. 854, 140 So. 336; White v. Herpolsheimer Co., 327 Mich. 462, 42 N.W.2d 240, 260 A.L.R. 2d 667; Sec. 1455, Code 1942; 38 Am. Jur., Negligence, Secs. 102, 131 pp. 763, 791.
P.D. Greaves, Gulfport, for appellee.
I. Cited and discussed the following authorities: Boggs v. Jewett, 127 Miss. 308, 90 So. 13; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Denman v. Denman, 242 Miss. 59, 134 So.2d 457; Gulfport Winn-Dixie, Inc. v. Taylor, 246 Miss. 332, 149 So.2d 489; Illinois Central R. Co. v. Humphries, 170 Miss. 840, 155 So. 421; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597; Larry v. Moody, 242 Miss. 267, 134 So.2d 462; Patterson v. Sayers, 223 Miss. 444, 78 So.2d 467; Wallace v. J.C. Penney Co. Inc., 236 Miss. 367, 109 So.2d 876; Western Union Telegraph Co. v. Blakely, 162 Miss. 854, 140 So. 336; 38 Am. Jur., Negligence, Secs. 102, 131 pp. 763, 791.
The appellant Almeta Oliver went to the office of the Republic Finance Corporation of Biloxi to make a monthly payment on her television set, and after opening the door of the appellee's office she started walking in the ordinary manner across the floor toward the counter where she meant to make her payment. After walking 15 or 20 feet toward the counter her feet slipped from under her and she fell on the floor. She did not stumble and fall; her feet just slipped forward from under her. (Hn 1) We think, after a full consideration of the facts in the case, that the question of liability must be adverse to the appellant's contention under the cases of Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447, and the line of cases of which Hohlt Co. v. Routt, (Tex. Civ. App.) 48 S.W.2d 386, is typical, and also the case of Bonawitt v. St. Vincents Hospital, 43 Ohio App. 347, 182 N.E. 661.
The appellant testified that after she had fallen she noticed that the floor had been recently polished and was very slippery; it had to be recently polished at some time during the month, if it was cleaned and polished at all. But the proof on behalf of the appellee disclosed that on the 15th day of the month, the date on which she fell, some 50 or more other persons had walked over the floor without mishap, and that on days other than August 15, 1961, when she fell, there had been 25 or more persons daily who had walked over the floor, without falling. Moreover, the appellant made no complaint at the time as to the condition of the floor, and the proof disclosed that the appellee had used the customary material for polishing the floor and showed that the polish had been spread on the floor by a buffing machine, and it was not claimed that any unusual amount of the wax or polish had been allowed to accumulate at the place where the appellant slipped and fell. As was frequently stated in opinions written by Judge Griffith, the issue is not danger, but negligence.
We do not think that the trial judge was in error in granting a directed verdict in favor of the defendant because of the insufficiency of the evidence to show that the appellee had been guilty of negligence.
Affirmed.
Kyle, Gillespie, Rodgers and Jones, JJ., concur.