Fox v. Ben Schechter Co. ( 1937 )

I dissent from the conclusion of the majority of the court for the reason that there is in the record not one scintilla of evidence that the substance upon which the plaintiff claimed she slipped was either negligently placed upon the floor by the owner, or its employees, or remained there for such a time as to constitute constructive notice of its presence.

The owner in the final analysis is only required to use the care which reasonably careful and prudent persons are accustomed to use under the same or similar circumstances. This requires the operator of a store in which vegetables and fruit are sold to use care that such things do not fall upon the floor or into the aisles, where they may cause injury to patrons, who, owing to the insufficient lighting, are unable to see them while exercising reasonable care for their own safety and slip and fall when stepping upon such substances.

The evidence in this case is that the plaintiff and her husband entered the store, that he noticed some debris upon the floor, that some fifteen minutes later his wife slipped upon some substance in the vicinity of the debris, which he said looked like lettuce leaves and grapes, that he examined the place where her foot slipped, and that it was a wet spot with heel marks running through it, and at the end of the marks there was a decayed grape.

How long this grape had been upon the floor, how it came there, where it came from, all are matters of pure speculation, and one guess, freeing the proprietor from liability, is just as good as another guess resulting in imposing liability.

This court has held that elements of negligence, proximate cause, and injury in a case are all matters of proof, not conjecture. Flamm v. Coney Island Co., 49 Ohio App. 122,195 N.E. 401. I consider the case of Kroger Grocery Baking Co. v.McCune, 46 Ohio App. 291, 188 N.E. 568, well considered and apropos to the instant case. The 4th paragraph of the syllabus in that case is:

"Customer could not recover for injuries sustained in slipping on leaf of lettuce on floor of grocery store, where there was no evidence whether employees knew of presence of lettuce on floor or how long it remained there."

There must be some limit this side of pure conjecture and speculation where the function of a jury ceases.

In my opinion the defendant was entitled to an instructed verdict, and in any event the case should be reversed as containing a verdict directly and manifestly against the weight of the evidence.

ROSS, P.J., HAMILTON and MATTHEWS, JJ., of the First Appellate District, sitting by designation in the Ninth Appellate District.