Opinion
October 9, 1935.
November 13, 1935.
Negligence — Customer slipping in store — Washing floor behind customer without her knowledge — Slippery condition of floor not visible.
In an action for injuries, evidence that after plaintiff, a customer, entered defendant's store, defendant's helper commenced washing the floor almost directly behind plaintiff, without warning her and without her knowledge, using soap and water which made the floor slippery, that plaintiff turned to leave and looked at the floor but its condition was not visible to her, and that the plaintiff slipped and fell after she had taken a step or two, was held sufficient to sustain the finding of the trial judge, sitting without a jury, that defendant was liable.
Appeals, Nos. 162-163, Oct. T., 1935, by defendant, from judgments of C.P. No. 5, Phila. Co., March T., 1933, No. 182, in case of Harry Drucker et ux. v. H. Moskowitz.
Before KELLER, P.J., BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Judgments affirmed.
Trespass for personal damages. Before STERN, P.J., without a jury.
The facts are stated in the opinion of the lower court as follows:
The wife plaintiff testified that she went into the defendant's bakery shop at 6:45 A.M., and, after obtaining some bread from an inner room, came out again into the outer store and paid him the purchase money. In doing this she stood in front of the counter and the defendant in back of it. She chatted with him for two or three minutes, and then turned around to go out; took but a step or two and fell on the floor. She had looked at the floor as she started to walk out but saw nothing wrong; it was a tile flooring. When she fell she saw a colored man on his knees a few feet to her right washing the floor with a mop and a brush and soap. He had not been there when she came into the store or when she went to the counter to pay for the bread. When she was picked up she had soap on her hands and coat. She said there was no ice or snow on the floor of the store, though there was snow in the street and she was wearing rubber overshoes. Her story was corroborated in some respects by another witness. Her injury was permanent and serious.
The testimony of the defendant was confused and uncertain. He denied that the colored helper was in the store at the time of the plaintiff's accident, and stated that the floor was never cleaned but in the very early morning before customers came in. Later, however, he said that the colored helper did not come in for work until between 6 and 7 o'clock in the morning. The helper himself testified that he always cleaned the floor in the afternoon and that he used a mop and soda for that purpose; he said that he did not know anything about the accident until a couple of hours after it had occurred.
The trial judge, sitting as a jury, might have found that the accident did not happen as testified to by the plaintiff and her witness, but from some other cause, as for example, a condition of the floor due to snow or ice brought in from the outside. On the other hand, there was ample testimony to support the Court's finding that the accident happened as claimed by the plaintiffs, and the evidence produced by the defendant was apparently not reliable. The findings of the trial judge should have the same weight as the verdict of a jury.
We have therefore a case where a customer enters a store when it is in every respect safe, walks to the counter in the course of the business errand on which she is engaged, and, while standing there with her back to the store, an employee, within a few feet of where she is so standing, starts to wash the tile flooring with soap and water. The woman turns around, takes but a step or two, and, the wet condition of the floor not being visible to her, she falls, and when she is picked up finds soap and water on her hands and coat.
On these facts the plaintiffs were entitled to recover. The proprietor of the store, having a duty reasonably to keep the place safe for invited customers, had no right to allow the tile floor to be washed with a slippery substance while the customer was in the store, and he was especially at fault in having this work done without the customer's knowledge and in back of her, so that almost immediately as she turned she was met by a condition of danger which resulted in the accident. The case is distinguishable from the authorities cited by the defendant, and seems to be covered by the decision in MacDonald v. F.W. Grand, Inc., 89 Sup. Ct. 526. The negligence consisted in the improper time chosen for the washing to be done, and in doing it almost directly in back of an unwarned customer.
For these reasons the Court dismissed the defendant's exceptions and overruled the motion for judgment n.o.v.
Findings for wife plaintiff in the amount of $2500, and for husband plaintiff in the amount of $120, and judgments thereon. Defendant appealed.
Error assigned, among others, was refusal of motion for judgment n.o.v.
Raymond A. White, Jr., for appellant.
Howard R. Detweiler, with him Robert M. Bernstein, for appellees.
Argued October 9, 1935.
The judgments are affirmed on the opinion of the court below filed pursuant to Rule 58 of this court.