Bowden v. S. H. Kress & Co.

*561 Beogdekt, J. What duty does the owner of a store owe to a customer with respect to the condition of the floors of such store ? The general rule deduced from the authorities is that an owner or occupant of buildings who directly or by implication invites or induces others to enter therein, owes a duty to such persons to exercise ordinary care to keep such premises in a reasonably safe condition and to give warning of hidden peril. The owner is not an insurer of the safety of the invitee while on the premises. Leavister v. Piano Co., 185 N. C., 152, 116 S. E., 405; Bohannon v. Stores Co., 197 N. C., 755. Moreover, the judicial utterances upon the subject concur in the view that the doctrine of res ipsa loquitur does not apply to injury resulting from slipping or falling occasioned by the presence of grease or oil upon the floors of a store. The courts discussing the liability of a store-owner, for injury received by customers and other invitees as the result of the accumulation of water, oil or grease upon the floors, have adopted widely divergent views. The leading cases denying liability are Spickernagle v. Woolworth, 84 Atlantic, 909; Kresge v. Fader, 158 N. E., 174; Dimarco v. Cupp Grocery Co., 88 Pa. Superior Court, 450; Lavine v. United Paper Board Co., 154 N. E., 635. Cases permitting recovery for such injuries are as follows: Harverty Furniture Co. v. Jewell, 144 S. E., 46; Robinson v. Woolworth Co., 261 Pac., 253; Benesch & Sons v. Kerkler, 139 Atlantic, 557; McNeill v. Brown & Co., 22 Fed. (2d), 675; Markham v. Bell Stores Co., 132 Atlantic, 178; Bradworth v. Woolworth Co., 140 S. E., 105. The leading authorities upon the subject are assembled in 35 A. L. R., 181; 58 A. L. R., 136. The South Carolina Court in the Bradford case, supra, declared that the analogy of master and servant was applicable to injuries sustained by a customer as a result of a fall upon an oiled floor. This theory was attacked in two dissenting opinions and particularly in the dissenting opinion of Cothran, J., in which the authorities upon the entire subject are discussed. Perhaps the case most similar to the case at bar is that of Benesch & Sons v. Kerkler, supra. In that case plaintiff testified that “as she was returning from a cross aisle into the right aisle leading to the exit she slipped and fell.” The floor was “dark and mucky and smeary like an oiled floor would be when the oil was not dried,” and that the “oily condition of the floor” caused her to fall. The case was submitted to the jury upon the theory that the oil had not dried, and that upon such facts the jury was warranted in finding that the owner was negligent. The Court said: “It was not the mere fact that the floor was oiled and that the appellee fell that entitled her to recover; it was the condition in *562 which the floor was left as the result of oiling that was submitted to the jury, and took it out of the rule laid down in the case of Spickernagle v. Woolworth,” etc. It will serve no useful or beneficial purpose to attempt to analyze the various decisions or to elaborate the theories upon which particular decisions are based. This is done in the cases and annotations already referred to. The only practical question is to determine which line the case at bar belongs to, under the law as held and interpreted by the courts. ~We are of the opinion and so hold that there was sufficient evidence of negligence to be submitted to the jury. Viewing the evidence of plaintiff with that liberality which the law demands in cases of non-suit, it is apparent that there was an accumulation of oil upon the floor where the plaintiff sustained her injury. This accumulation was unusual for the reason that the testimony tended to show that there was much more oil at this point than at any other point in the store. The print of plaintiff’s shoe was observed in this patch of oil. These pertinent facts point unerringly to the conclusion that the oil was not properly applied or that it was applied in a negligent and unusual manner and had been in such condition for more than a week. Hence the trial judge properly submitted to the jury the question as to whether the condition had existed for such length of time as to have been discovered by the exercise of ordinary care. The defendant relies upon Bohannon v. Stores Co., supra, but the principle announced in that case has no application. The plaintiff was an employee of the store and was familiar with the metal strips across the front of the steps. There was no evidence of any defect in the metal strips or in the steps. Furthermore, all the steps were exactly alike and in plain view. Hence there was nothing unusual or hidden. No error.