Harris v. Montgomery Ward & Co.

DenNY, J. The appellant seriously contends its motion for judgment as of nonsuit, interposed at the close of plaintiff’s evidence and renewed at the close of all the evidence, should have been sustained. Ordinarily an action against an owner or lessee of a building cannot be sustained where it is founded solely upon the fact that a patron or invitee was injured by slipping on a waxed or polished floor, where the floor had been waxed or polished in the Usual and customary manner and with material in general use for that purpose. Barnes v. Hotel Corp., 229 N.C. 730, 51 S.E. 2d 180, and the cases cited therein. The fact that a floor is waxed or polished is not ipso facto evidence of negligence. Res ipsa loquitur does not apply to injuries resulting from slipping or falling on a waxed or oiled floor. Barnes v. Hotel Corp., supra; Pratt v. Tea Co., 218 N.C. 732, 12 S.E. 2d 242; Parker v. Tea Co., 201 N.C. 691, 161 S.E. 209; Bowden v. Kress, 198 N.C. 559, 152 S.E. 774. Moreover, the proprietor of a store is not an insurer of the safety of his customers; and when an action is brought against him to recover for an injury resulting from a fall, caused by some substance on the floor where customers may be expected to walk, “in order to justify recovery it must be made to appear that the proprietor either placed or permitted the harmful substance to be there, or that he knew or by the exercise of due care should have known of its presence in time to have removed the danger or given proper warning of its presence.” Brown v. Montgomery Ward & Co., 217 N.C. 368, 8 S.E. 2d 199; Fox v. Tea Co., 209 N.C. 115, 182 S.E. 662; Sams v. Hotel Raleigh, 205 N.C. 758, 172 *488 S.E. 371; Cooke v. Tea Co., 204 N.C. 495, 168 S.E. 679; Parker v. Tea Co., supra; Bohannan v. Stores Company, Inc., 197 N.C. 755, 150 S.E. 356. We concede tbis is a border line case. However, the plaintiff offered evidence to the effect that an employee of the defendant applied Myco-sheen on the floor where the plaintiff fell only a short time before the accident, and that plaintiff’s fall was caused by slipping on a little greasy, slick spot on the floor. The plaintiff also offered evidence to the effect that Myco-sheen is slick if not properly applied, and when it is applied on Saturday night the floor is always gone over on Monday morning in order to be sure there are no slick places. In applying the law to the facts in this case, the question to be answered is simply this: Was plaintiff’s evidence, when considered in the light most favorable to her and she is given the benefit of every reasonable inference to be drawn therefrom, sufficient to carry the ease to the jury? We have concluded this question must be answered in the affirmative. Brown v. Montgomery Ward & Co., supra; Anderson v. Amusement Co., 213 N.C. 130, 195 S.E. 386; Parker v. Tea Co., supra; Bowden v. Kress, supra. The appellant excepts and assigns as error the following portions of his Honor’s charge: “Now the burden of proof upon this issue rests upon the plaintiff to satisfy you from the evidence and by its greater weight that the defendant, Montgomery Ward & Company, was negligent in one of the respects alleged, one or more of the respects alleged, and that such negligence on its part constituted the proximate cause, or one of the proximate causes of the plaintiff’s injuries. . . . There may be two or more proximate causes of an injury. The plaintiff, in order to establish actionable negligence, is not required to satisfy the jury from the evidence and by its greater weight that .negligence on the part of the defendant constituted the sole or only proximate cause of the injury. It is required, however, that the plaintiff satisfy the jury from the evidence and by its greater weight that negligence on the part of the defendant was a proximate cause, or one of the proximate causes, of the injury.” It is sufficient on the issue of primary negligence for a plaintiff to satisfy the jury from the evidence and by its greater weight that the negligence on the part of the defendant was a proximate cause or one of the proximate causes of his injury, where the evidence also tends to show that the negligence of some other person or agency concurred with the negligence of the defendant in producing plaintiff’s injury. Rattley v. Powell, 223 N.C. 134, 25 S.E. 2d 448; Sample v. Spencer, 222 N.C. 580, 24 S.E. 2d 241; Henderson v. Powell, 221 N.C. 239, 19 S.E. 2d 876; Gold v. Kiker, 216 N.C. 511, 5 S.E. 2d 548; Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814; Wachovia Bank & Trust Co. v. Southern Ry. *489 Co., 209 N.C. 304, 183 S.E. 620; Campbell v. R. R., 201 N.C. 102, 159 S.E. 327. But when there is no evidence of such concurring negligence, as in this case, then the negligence of the defendant must be the proximate cause of the injury, otherwise the plaintiff is not entitled to recover. Wood v. Telephone Co., 228 N.C. 605, 46 S.E. 2d 717; Montgomery v. Blades, 222 N.C. 463, 23 S.E. 2d 844; Luttrell v. Mineral Co., 220 N.C. 782, 18 S.E. 2d 412; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406; Murray v. R. R., 218 N.C. 392, 11 S.E. 2d 326; Little v. Martin Furniture Co., 200 N.C. 731, 177 S.E. 796. For the contributory negligence of a plaintiff would defeat a recovery in an action such as this, even though the plaintiff’s negligence was but one of the proximate causes of the injury, and not the sole proximate cause. Tyson v. Ford, 228 N.C., 778, 47 S.E. 2d 251; Riggs v. Gulf Oil Corp., 228 N.C. 774, 47 S.E. 2d 254; Davis v. Jeffreys, 197 N.C. 712, 150 S.E. 488. For the reasons stated, we think the defendant is entitled to a new trial. Therefore, it becomes unnecessary to consider or discuss the remaining assignments of error. New trial.