Sweet v. Big Bear Stores Co.

OPINION

By THE COURT.

Our examination of the record in this case discloses that Judge King properly applied the legal principles pronounced in the case of Kroger v. McCune, 46 Oh Ap 291, and therefore did not err in directing a verdict in favor of the defendants at the close of the plaintiff’s case.

The judgment will be affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.

ON MOTION TO CERTIFY CAUSE

No. 4684.

OPINION

By THE COURT.

This is a motion to certify this cause to the Supreme Court of Ohio as being in conflict with the decision of the Court of Appeals for Summit County in the case of Fox v. Schechter, 57 Oh Ap 275. While in the Fox case there was some evidence in the record as to the length of time the foreign substance was on the floor and which does not appear in the case at bar, the Court disregarded this fact when it said at page 279:

“If the jury concluded that it was more probable that defendant dropped the fruit, no further evidence was necessary on that branch of the case.”

This Court followed the case of Kroger v. McCune, 46 Oh Ap 291, which held contra to the above quoted legal principle. In other words, we held that the jury is not to be permitted to speculate as to the cause of the substance being on the floor. The trial Court at page 124 of the record was of the opinion that the Fox case was opposed to the Kroger case and counsel for the appellee, Big Bear Stores Company, recognized it also at page 9 of its brief, saying:

“This court, neither in the McCune case nor in any other floor-slipping case, and other courts in Ohio except in the Fox case, have not sanctioned such principle.

The motion will be sustained.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.