Taylor v. Northern States Power Co. , 196 Minn. 22 ( 1935 )

In the law of this case as stated by the syllabus I concur. My disagreement with the result is due to my inability to find in the evidence anything sufficient to sustain a finding of negligence. Only by implication can I conclude that the failure of defendant either to keep its floor dry or to cover it by additional matting constitutes the omission held to be negligent. The surface was "soapy" only in the sense that it was slippery. There was no "soap" or aught else of similar character not brought in on the footwear of customers. There is no claim that the waxed surface itself was changed in texture or otherwise. For that reason, failure seems to me to attend the attempt to put the action in the same category with Usher v. Eckhardt, 176 Minn. 210, 222 N.W. 924. The plaintiff therein, a patron of the cafe wherein she was injured, entered over a dry floor. Before her exit, what the jury could have found was "soapy" scrubbing water had been left on the floor in dangerous quantity at the spot where she fell. The floor, on adequate evidence, was found to have been in an abnormal and dangerous condition due to an act of the defendant.

The construction of this defendant's floor, including the surface treatment, not even suggesting negligence, there can be none unless something else appears — some other act or omission such as that just indicated as being the decisive factor in Usher v. Eckhardt, 176 Minn. 210, 222 N.W. 924. A case in point is Bodine v. Goerke Co. 102 N.J.L. 642,133 A. 295, where under parallel circumstances recovery was denied as matter of law. Another case is S. S. Kresge Co. v. Fader,116 Ohio St. 718, 158 N.E. 174, 175, 58 A.L.R. 132. Its application is shown by the following quotation [116 Ohio St. 723] :

"Owners or lessees of stores, office buildings, banks, hotels, theaters, or other buildings where the public is invited to come on business or pleasure, are not insurers against all forms of accidents that may happen to any who come. Everybody knows that the hallways between the outside doors of such buildings and the elevators or business counters inside the buildings during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be. The same thing is true in the hallways of all postoffices. It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to mention them here in detail.

"It should be borne in mind that this accident did not happen in some dark walkway in the store where the shopper found it necessary to go. It occurred in broad daylight, and there is no pretense that there was anything to prevent any shopper from seeing and knowing precisely what the conditions were."

Other authorities are gathered under the subtitle "Slippery Places" in the annotations appearing at 33 A.L.R. 221, and 58 A.L.R. 142.

The judicial habit of distinguishing precedents is much overdone, I know. But it would be unfair to the argument of counsel not to indulge in it somewhat further here. The thing determinative in McIntyre v. Holtman, 193 Minn. 439,258 N.W. 832, was that on a wooden floor oil had been improperly applied, leaving some spots much more slippery than others. Nothing of that kind can be claimed here except that the dry floor was not as hazardous as the wet. The wetting was due to no act of defendant, but solely to the elements and ordinary use. In Langley v. F. W. Woolworth Co. 47 R.I. 165, 167,131 A. 194, there was evidence that a "pint of peanuts" had gotten spilled on the floor and "ground in." As a result the plaintiff slipped and fell to her hurt. Like some other cases referred to, it had factual foundation for the conclusion of negligence not present here.

We need not labor the rule that "one who keeps a store or shop is bound to exercise reasonable care to keep it in a safe condition for his customers." 4 Dunnell, Minn. Dig. (2 ed. Supps. 1932, 1934) § 6987. No one questions that. Neither does anyone aver that a shopkeeper is an insurer of the safety of his customers. As already indicated, the evidence does not suggest any defect of construction. There is testimony that rubber matting is sometimes used under conditions such as those present in this case. Defendant had put down a "cocoa door mat." But the floor had been wetted and soiled well beyond that and into the room. As a practical matter, if it was negligent not to have rubber matting in front of the door, it could be claimed with equal force that it would be want of due care not to have such covering wherever the floor happened to be wet from snow or slush melting from the feet of customers. Hence, in order to avoid making any such claim one for solution as of fact rather than law, and however safe and modern a floor otherwise, it would yet have to be covered by matting. That conclusion is not urged in argument. But it shows how prolific of questionable results would be a holding that mere absence of any matting could be taken as evidence of negligence. Under adverse weather conditions, any uncovered spot on any much frequented ground floor salesroom would be a source of enough danger to sustain a finding of negligence. That conclusion shows the invalidity of the argument by which it is reached.

The rule I deduce from the cases is that where the hazard is obvious, as much so to the injured party as to the owner, and a well-lighted floor, free from structural defects, is made slippery only by the presence thereon of water due wholly to temporary adverse action of the elements and ordinary use, the owner is not liable as for negligence where the only omission chargeable to him is a failure to remove or render absolutely harmless the agency of injury. To permit negligence to be predicated on such nonaction, without more, would in practical effect make an insurer of the owner, a result the law does not permit.

DEVANEY, CHIEF JUSTICE, took no part in the consideration or decision of this case.