Opinion
Submitted February 17, 1933 —
Decided April 27, 1933.
1. It is well settled that a ruling denying a motion to nonsuit, erroneous at the time it is made, may be cured by subsequent proofs.
2. Plaintiff entered defendant's store, stepped in a pool of oil on the floor, and fell and was injured. At the close of plaintiff's case, there was no proof as to the origin of the oil, how long it had been on the floor, or that defendant knew about the condition of the floor, at the time plaintiff was injured. After the denial of the motion to nonsuit, proofs were offered showing that those in charge of the store were accustomed to clean the floor, and oil it with a swab dipped into a bucket of oil, and that such oiling was done some three days prior to the accident. Held, that assuming that the motion to nonsuit when made should have been granted, the subsequent proofs cured the error, and raised a jury question whether the injuries plaintiff sustained were due to defendants' negligence.
On appeal from the Supreme Court.
For the appellants, Edwards, Smith Dawson.
For the respondents, De Turck West.
Mrs. McGee was injured by falling on the floor of a grocery store operated by the Great Atlantic and Pacific Tea Company and she and her husband brought suit to recover damages for the injuries sustained, claiming that the fall was due to the negligence of the employes of that company.
There appears to have been a verdict and judgment for the wife alone and from this judgment the defendant company appeals, alleging as grounds of appeal that the court erred in overruling a motion for nonsuit and in the admission of portions of the evidence.
The plaintiffs' proofs tended to show that Mrs. McGee entered the store of the defendant to purchase groceries, and that when she was about to leave she slipped on a pool of oil covering a spot on the floor and received the injuries complained of. There was also some evidence that after the accident the place was covered with sawdust and that the manager was just about to put the sawdust down when the accident happened.
It was in this state of the proofs that the motion for nonsuit was made and denied, and if the defendant had submitted its case at this point without further evidence the question would be squarely presented whether it was sufficient to justify an inference of negligence in the defendant. When the plaintiffs' case was closed there was no proof as to the origin of the oil, the duration of its presence on the floor or that the defendant was apprised of the condition of the floor at the time, but subsequent proofs established that those in charge of the store were accustomed to cleaning and oiling the floor; that the oiling was done with a swab which was dipped in a bucket containing the oil, and that such oiling was last done on the preceding Saturday night, the accident having occurred on Wednesday.
It is well settled that a ruling denying a motion for nonsuit, erroneous at the time it is made, may be cured by subsequent proofs. Van Cott v. North Jersey Street Railway Co., 72 N.J.L. 229. Assuming that the motion when made should have been granted, we think the proofs later appearing cured the error. The only source of the oil justifiable under the proofs was then traceable to the defendant itself, or at least so the jury might find, and this being true when the case was finally closed it was for the jury and not for the judge to pass upon.
The evidence of the oily condition of the plaintiff's coat when taken to the tailor for cleaning was properly received, in view of the proofs offered as to the condition and custody of the coat at the time of the accident and subsequent thereto up to the time the witness received it.
The judgment is affirmed.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.