Opinion
31861.
DECIDED FEBRUARY 19, 1948.
Action for damages; from Floyd Superior Court — Judge Porter. October 24, 1947.
M. G. Hicks, W. T. Maddox, for plaintiff.
Bryan, Carter Ansley, Wright, Rogers, Magruder Hoyt, for defendant
1. Where the evidence for the plaintiff was sufficient to authorize a jury to find that the defendant was negligent in causing or allowing an excess amount of wax, or other slippery substance, to be placed upon the floor of its store, where the plaintiff was invited as a customer, and that by reason of the resultant condition of the floor she was injury by slipping and falling thereon, a prima facie case was made for the plaintiff; and the trial judge erred in granting a nonsuit.
2. It can not be said as a matter of law that the plaintiff in walking between the counters of the defendant's store with knowledge that the floors of the store had been waxed was guilty of such negligence, if any, as would bar a recovery where it appears that her act would not have been attended with any danger except for the excess amount of wax, or other substance, that the defendant had placed and allowed to remain on the floor between the counters, where the public was invited and where the plaintiff fell and was injured which defect could have been discovered only by an examination of the floor at that point.
3. The evidence, when construed in its most favorable light to the plaintiff made out a prima facie case for her; and the trial judge erred in granting a nonsuit.
DECIDED FEBRUARY 19, 1948.
Mrs. Margaret Rose Bryant sued S. H. Kress Company in the Superior Court of Floyd County, seeking to recover damages for personal injuries alleged to have been sustained when she slipped and fell on the floor in the defendant's store in Rome Her petition alleged in substance: that , on September 3, 1946, she was a customer in the defendant's store; that the defendant had placed on the floor of its store certain substances in the nature of wax or grease, which made the floor slippery and dangerous; that the wax or grease or other substance had been allowed to remain on the floor of the store during the hours of the day that the general public traded in the store; that the plaintiff did not know of the dangerous condition of the floor and could not have discovered it by the exercise of ordinary care; that she slipped and fell to the floor thereby receiving certain specified personal injuries, which were alleged to be permanent; that she had suffered and would continue to suffer pain and agony on account of her injuries; that she had incurred doctor's and hospital bills in an unspecified amount; and that "the defendant was negligent in the following manner and respect: 1st, by permitting its said agent and employee to place said wax, grease or other substance. unknown to petitioner, upon said floors during the hours of the day when the general public was invited to come and trade; 2nd by knowingly permitting, through its agent and employee, said wax, grease, or other substance of a slippery character or nature to remain on said floors during the hours of the day in which the public was invited to visit said store." The prayers of the petition were for process and for judgment against the defendant.
The case proceeded to trial. On the trial. the plaintiff testified: that she went to the defendant's store to make a purchase and slipped on the floor and fell as she was walking between the counters in the store; that the floor was slippery; that one of the defendant's employees said that he floors had been waxed the previous Saturday night, and that the plaintiff was the second person who had slipped at that particular place that morning; that the plaintiff did not notice that the floor was slippery until after she had fallen; that the floor was a wooden floor and looked like any other wooden floor that had been waxed or oiled or had something put on it. One of the witnesses for the plaintiff testified: that she was in the store at the time that the plaintiff fell and was injured; that, after the plaintiff had fallen she observed that something had been on the floor; that it was "grease or something;" that the floor looked different at the point where the plaintiff fell, and that she could see the print of plaintiff's heels, which left a streak in the "grease, wax, or something." Another witness testified: that she was in the defendant's store at the time the plaintiff slipped and fell, and that she had almost fallen at the same place that same morning; that the floor had just been waxed and did not seem slippery, except along in the aisle where the plaintiff slipped and fell; that it was slippery in that aisle; and that when "they carried her back there, they said that they had just waxed it. . . Jewell Williams said that they had just waxed it too . . . Then Miss Walker said that too. . . This Jewell, Williams . . . was the girl that was working on the counter." There was other evidence as to the manner in which the accident occurred and as to the extent and character of the plaintiff's injuries but it is not necessary to set it out here.
On motion of the defendant, the court granted a nonsuit, and the plaintiff excepted.
1. "A nonsuit shall not be granted merely because the court would not allow a verdict for the plaintiff to stand; but if the plaintiff fails to make out a prima facie case or if, admitting all the facts proved and all reasonable deductions from them the plaintiff ought not to recover, a nonsuit shall be granted." Code, § 110-310. A motion to nonsuit is in the nature of a demurrer to the evidence, and should never be granted when there is any evidence tending to sustain the plaintiff's action, or where the jury can fairly infer from the evidence a state of facts favorable to the plaintiff, and the evidence should be construed in its most favorable light for the plaintiff Hawkins. v. National Surety Corp., 63 Ga. App. 367, 373 ( 11 S.E.2d 250); Yeager v. Weeks, 74 Ga. App. 84 (2) (39 S. e. 2d 84). also see Moseley v. Patterson, 27 Ga. App. 133, 135 ( 107 S.E. 623); Mason v. Hall, 72 Ga. App. 867, 873 ( 35 S.E.2d 478). and citations ; Vickers v. Atlanta West Point R. Co., 64 Ga. 306, 307
The plaintiff was an invitee upon the premises of the defendant at the time she slipped and fell. "Where the owner or occupier of land, by express or implied invitation, induces or leads other to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Code. § 105-401. "In general ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the dame or similar circumstances . . . The absence of such diligence is termed ordinary negligence." § 105-201. Under the evidence in this case, the jury was authorized to find that the defendant had placed wax, or some other substance, upon the floor of its store; that the wax or other substance had been applied over the entire floor of the store, but that at the point in the aisle between the counters where the plaintiff slipped and fell, the wax or other substance was thicker than elsewhere in the store and the floor at that point was slippery and persons were more apt to fall at that point than at other places in the store; that this conditions had existed for some time, that is, if this accident occurred on Monday before noon, the floor was waxed the preceding Saturday night, and the defendant's employees know of this condition prior to the time that the plaintiff slipped and fell; that, while the entire floor had been covered with wax, or other substance, by the defendant, it was thicker at the place where the plaintiff slipped and fell than at other places in the store, but that this could be observed only by a close inspection.
Under the evidence in this case, when construed in its most favorable light to the plaintiff, as is proper when exception is taken to the grant of a judgment of nonsuit, the jury would have been authorized to find that the defendant was negligent in causing or allowing a slippery substance to be placed upon the floor of its store, where the plaintiff was invited as a customer, and that by reason of the resultant condition of the floor she was injured by slipping and falling thereon. We think that the evidence was sufficient to make a prima facie case for the plaintiff and, therefore, should have been submitted to and passed on by the jury. In this connection, see Woolworth v. Wood, 32 Ga. App. 575 ( 124 S.E. 110) and citation; Mattox v. Lambright, 31 Ga. App. 441 ( 120 S.E. 685), and citations; Southern Grocery Stores v. Braun, 57 Ga. App. 31 ( 194 S.E. 219).
The cases cited and relied on by the defendant in error, Cook v. Kroger Baking Grocery Co., 65 Ga. App. 141 ( 15 S.E.2d 531), Brown v. S. H. Kress Co., 66 Ga. App. 242 ( 17 S.E.2d 758), and Miscally v. Colonial Stores Inc., 68 Ga. App. 729 ( 23 S.E.2d 860), are distinguishable on their facts from the present case, in that, in those cases, the plaintiff were injured by stepping upon some object upon the floors of the defendants' stores but it did not appear in such cases that the defendants themselves had placed the objects there or knew of their presence upon the floors, nor was the time in which the objects had been allowed to remain there shown to be of sufficient length to charge the defendant itself had placed the wax, or other substance, upon its floor, and that it had been allowed to remain there for some period of time. The other cases cited and relied on by the defendant in error are likewise distinguishable on their facts from the present case.
2. The defendant contends that the plaintiff was guilty of such want of ordinary care for her protection as would preclude a recovery. This contention is not borne out by the evidence. The jury was authorized to find that the entire floor had been waxed, or covered with some other substance, and that at the place where the plaintiff was injured the wax, or other substance, appeared to have been poured or spilled and it was thicker there then elsewhere in the store, but this condition of the floor at the place where the plaintiff slipped and fell could not be easily seen by customers of the store coming in and walking on the floor at that point, it being darker there than in other parts of the store.
It can not be said as a matter of law that the plaintiff, in walking between the counters in the defendant's store with knowledge that the floors of the store had been waxed, was guilty of such negligence, if any, as would bar a recovery, where it appears that her act would not have been attended with any danger, except for the excess amount of wax, or other substance, that the defendant had placed and allowed to remain on its floor between the counters where the public was invited and where the plaintiff fell, which defect could only be discovered by an examination of the floor at that point. In this connection, see Mattox v. Lambright, supra.
3. The evidence, when construed in its most favorable light to the plaintiff made out a prima facie case for her, and the judge erred in granting a judgment of nonsuit.
Judgment reversed. Felton and Parker, JJ., concur