Evans v. S. S. Kresge Co. ( 1939 )

ON REHEARING. On November 9, 1934, plaintiff entered defendant's store in the city of Flint and, after walking about 20 feet down an aisle, slipped and fell, suffering serious injury. After she had fallen, she noticed a piece of fatty meat, about the size of a dollar, mashed on the sole of her shoe.

Just inside the door of the store, defendant has a lunch counter approximately 25 feet long and about 41/2 feet high. Hamburg sandwiches, barbequed meat, and soft drinks are sold at the counter. There are no stools or chairs for the customers. When they eat they stand in the aisle at the lunch counter, or cross to the other side of the aisle and eat at a candy counter. There was testimony that greasy paper napkins were thrown on the floor of the aisle from time to time, and that pieces of meat and food frequently dropped on the floor as the result of people eating in the aisles. Defendant claims that a lookout is kept for such food fragments on the floor and that a porter is employed whose sole duty it is to sweep the floor of the aisle at certain hours during the day. Several thousand people visit the store daily.

Plaintiff brought suit against defendant alleging that it was guilty of negligence in failing to use reasonable care in maintaining a safe passageway in the store, and that her injuries resulted from such negligence. The jury rendered a verdict in favor of plaintiff; and the court denied a motion for judgment non obstante veredicto, and for a new trial.

Defendant claimed that plaintiff was guilty of contributory negligence in not seeing the meat on the floor before she slipped upon it; and that there was no evidence of any negligence on its part. Negligence would not be imputed to plaintiff for failing to look out for danger if, under the surrounding circumstances, she had no reason to suspect that such danger was to be apprehended. Lawrence v. Bartling DullCo., 255 Mich. 580; Baldwin, Personal Injuries (2d Ed.), p. 138, § 146. See 45 C. J. p. 954. Plaintiff was not patronizing the lunch counter, but was proceeding in the aisle to the stocking department. She could not be said, as a matter of law, to be under obligation to look for an unsafe condition of the floor. Brown v. Stevens, 136 Mich. 311 (16 Am. Neg. Rep. 101);Wine v. Newcomb, Endicott Co., 203 Mich. 445.

Filipowicz v. S. S. Kresge Co., 281 Mich. 90, relied upon by defendant, can be distinguished from the facts in the instant case. In that case the plaintiff was injured as a result of slipping on a stairway. After receiving medical treatment on the premises and leaving the store, she discovered that her dress and stockings had black grease marks upon them, and afterward testified that the stairway had felt as though it were slippery. A judgment in her favor was set aside on the ground that there was no evidence as to how the grease got upon the stairway and that defendant had no knowledge of its presence, nor had it been on the steps long enough so that its employees should have known of it. In the case before us, there was considerable evidence that on the floor upon which plaintiff slipped there were often bits of meat and greasy paper napkins. It is a fair inference that defendant's employees either knew of such generally prevalent conditions or should have known of them.

With regard to defendant's claim that there was no evidence of negligence on its part, while it appears that there was no proof as to how long the meat, upon which plaintiff slipped, had been on the floor, or whether it had fallen from the lunch counter or from the hands of a customer, reasonable inferences may be drawn from the facts. From testimony that pieces of meat often fell on the floor of the aisle, and that greasy napkins were often dropped in the aisle, it is a fair inference that the meat upon which plaintiff slipped came from the lunch counter; and that, because of the fact that such greasy food and greasy napkins were often on the floor, defendant was negligent in not maintaining the aisle in a reasonably safe condition for customers of the store and especially plaintiff. Under the testimony, such legitimate inferences could be drawn from the facts, by a jury. The question of defendant's negligence was one of fact.

Judgment affirmed, with costs to plaintiff.

SHARPE, POTTER, and CHANDLER, JJ., concurred with McALLISTER, J.