Anderson v. Reidsville Amusement Co.

Devin, J. Was there error in the denial of defendant’s motion for judgment of nonsuit? Upon a motion for nonsuit the uniform rule is that the evidence must be viewed in the most favorable light for the plaintiff, and if there is any competent evidence tending to prove the facts in issue, the case must be submitted to the jury. Considering the testimony offered in the instant case in accord with this rule, we are led to the conclusion that there was sufficient evidence of negligence on the part of the defendant, *133 proximately causing injury to the plaintiff, to warrant the submission of the case to the jury, and that defendant’s motion for judgment of nonsuit was properly denied. The plaintiff, a patron of defendant’s theatre, purchased a ticket and entered the building at the implied invitation of the defendant. While the defendant was not an insurer of plaintiff’s safety while on its premises, it did owe her the duty to exercise due care to avoid injury to her. As was said by this Court in Bowden v. Kress, 198 N. C., 559, 152 S. E., 625: “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.” Miller v. Sensenbrenner Mercantile Co., 33 A. L. R., 176, and note; J. C. Penny v. Robinson, 128 Ohio St., 626; 100 A. L. R., 705, and notes. In Bowden v. Kress, supra, a customer in a store slipped on some oil on the floor and was injured. Brogden, J., speaking for the Court in that case, in holding the evidence sufficient to be submitted to the jury, uses this language: “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.” In Parker v. Tea Co., 201 N. C., 691, 161 S. E., 209, where a customer in a store slipped on oil on the floor, the evidence was strikingly similar to that of plaintiff in this action. In that case, in sustaining a recovery by the plaintiff, this Court said: “Considering the evidence in the case at bar with that liberality which the law requires, it would appear as a reasonable inference that the floor was not properly oiled, in that oil had been permitted to accumulate on the floor at a place where customers were invited to inspect the merchandise displayed.” In Cooke v. Tea Co., 204 N. C., 495, 166 S. E., 336, where a customer slipped on a banana peeling just outside the door of the store, on the floor of the entrance to the store, nonsuit was sustained “in the absence of any evidence tending to show that the defendant was negligent.” *134 And in Fox v. Tea Co., 209 N. C., 115, 182 S. E., 662, where a customer slipped on a beet on the floor of tbe store and fell, nonsuit was sustained, the Court using this language: “Since there is no evidence how the beet got upon the floor of the aisle, or how long the beet had been upon the floor before the plaintiff stepped on it, there is no evidence of negligence on the part of the defendant.” In King v. Thackers, 207 N. C., 869, 178 S. E., 95, where an employee slipped on some meal on the floor of the kitchen, recovery was denied on the ground of contributory negligence. Defendant noted exception to the exclusion of the testimony of a witness that of a large number of patrons who were in the theatre that day none had fallen while walking over the same place where plaintiff fell. Though the evidence sought to be elicited in response to the question excluded was in some respects negative in character, it was not for that reason incompetent, but is usually regarded as of less probative value (S. v. Murray, 139 N. C., 540, 51 S. E., 775), and its admission would open the door to a variety of collateral questions. This is the ground upon which the admissibility of such evidence was denied in Branch v. Libbey, 78 Me., 321 (defect in street); Newcomb v. R. R., 182 Mo., 687 (oil on platform); Marvin v. New Bedford, 158 Mass., 464 (hole in sidewalk); Bauer v. Indianapolis, 99 Ind., 56 (obstruction in sidewalk); Temple Hall Assn. v. N. J. L., 260 (defect in street), and Anderson v. Taft, 20 R. I., 362 (defective street). In 2 Jones Com. on Ev., sec. 683, the author says: “The authorities are divided as to the relevancy of showing that other persons passed over the same walk or street without injury, the weight being against the admissibility of such evidence.” In Parker v. Tea Co., supra, similar testimony was excluded by the trial .judge, and this Court, referring to the question, used this language : “The defendant undertook to show that three hundred customers entered the store on the day plaintiff fell, and that no one else sustained injury. Doubtless this evidence was offered for the purpose of refuting the theory that the floor was improperly oiled. The trial judge excluded the evidence, but it appears from a notation in the record that counsel on each side, without objection, argued to the jury that there were three hundred people present in the store on the day plaintiff was injured. So that if it be conceded that the excluded evidence was competent, nevertheless the defendant had the full benefit of every inference which could be drawn from such testimony.” In the case at bar the defendant was permitted to offer evidence tending to show that four hundred and seventy-five persons were in the theatre that day, some of whom had passed over the same place where plaintiff fell, and plaintiff testified she had seen others going in the theatre walking over this rubberized linoleum, but she said, “I did not see anybody else except myself step where that accumulation of that stuff was on the floor.” *135 In view of all the evidence, properly admitted and before the jury, we are unable to say that the exclusion of the testimony offered by the defendant under the circumstances was prejudicial, or that it affected the result. Defendant noted numerous exceptions to the judge’s charge to the jury, hut upon examination of the charge as a whole we find it free from error. The case seems to have been fairly presented to the jury, and we find no sufficient ground to warrant the overthrow of the verdict of the triers of the facts on the issues submitted or to vacate the judgment of the court thereon. No error.