Lanier v. Roses Stores, Inc. , 2 N.C. App. 501 ( 1968 )

  • 163 S.E.2d 416 (1968)
    2 N.C. App. 501

    Bessie B. LANIER

    No. 6811SC266.

    Court of Appeals of North Carolina.

    October 9, 1968.

    *417 Bryan, Bryan & Johnson, Dunn, and Morgan & Jones, by Robert H. Jones, Lillington, for plaintiff appellant.

    Maupin, Taylor & Ellis, by Armistead J. Maupin, Raleigh, for defendant appellee.

    BRITT, Judge.

    Plaintiff's evidence, when considered in the light most favorable to her, and giving her the benefit of every reasonable inference of fact, as we are required to do, was sufficient to establish a prima facie case of actionable negligence for the jury.

    The failure to exercise that degree of care which a reasonable and prudent man would have exercised under like circumstances is negligence, and this may consist of acts of commission or omission. 3 Strong, N.C. Index, Negligence, § 1, p. 442, and cases cited therein. Forrest v. S. H. Kress & Co., 1 N.C.App. 305, 161 S.E.2d 225.

    Those entering a store during business hours to purchase or look at goods do so at the implied invitation of the proprietor, upon whom the law imposes the duty of exercising ordinary care (1) to keep the aisles and passageways where customers are expected to go in a reasonably safe condition, so as not unnecessarily to expose the customer to danger, and (2) to give warning of hidden dangers or unsafe conditions of which the proprietor knows or in the exercise of reasonable supervision and inspection should know. Lee v. H. L. Green & Co., 236 N.C. 83, 72 S.E.2d 33; Bowden v. S. H. Kress & Co., 198 N.C. 559, 152 S.E. 625.

    The defendant is not an insurer of the safety of his premises, Bowden v. *418 S. H. Kress & Co., supra; nor does the doctrine of res ipsa loquitur apply. Harris v. Montgomery Ward & Co., 230 N.C. 485, 53 S.E.2d 536. Moreover, the doctrine of negligence per se is inapplicable to this situation. Lee v. H. L. Green & Co., supra.

    This case is governed by the case of Lee v. H. L. Green & Co., supra, wherein, after noting that the plaintiff therein had offered no direct testimony as to when, how, or by whom the oil dressing had been applied, it is stated:

    "However, where, as here, a complaining party offers evidence tending to show a slick, oily floor condition, existing under circumstances pointing to some general type of previous oil treatment, showing fresh oil in some places and dry in others, thus indicating the application or accumulation of more oil in some places than others, we think the case may not be withdrawn from the jury simply because the plaintiff or her witnesses did not see the oil applied or know when or by whom it was applied or relate the precise details respecting the kind and quantities of oil applied or the mode of procedure followed in applying it. Where the facts in respect to these things are reasonably inferable from the plaintiff's evidence, as in the present case, it is not imperative, under pain of suffering a nonsuit, that the plaintiff go further and indulge in the exploratory procedure of looking for bystanders who were present when the floor was oiled, or calling to the stand employees of the defendant who may have first hand knowledge of the method followed in applying the oil. The essentials of a prima facie case do not require any such intensity of proofs nor precision as to details. 38 Am.Jur., Negligence, Sec. 333; 65 C.J.S., Negligence, § 243, pp. 1068 and 1074; Hulett v. Great Atlantic & P. Tea Co., 299 Mich. 59, 299 N.W. 807; Benesch & Sons v. Ferkler, 153 Md. 680, 139 A. 557, cited in Bowden v. S. H. Kress & CO. [sic], supra."

    Here, as in the Lee case, there was evidence of a slick floor, with an appearance indicating the recent application of oil, dry in most areas, but still wet in others, which would justify the jury finding an application of excessive amounts of oil in areas where customers might be expected to go. There was no evidence of a warning of this condition. The facts are sufficient to support the inference of application of oil by the defendant or its agents. Defendant is deemed to have knowledge of its own acts or the acts of its agents. Lee v. H. L. Green & Co., supra.

    In its answer, defendant pled contributory negligence on the part of plaintiff; however, it did not argue this question in its brief. We hold that the evidence does not disclose contributory negligence as a matter of law.

    The judgment of the Superior Court granting defendant's motion for judgment as of involuntary nonsuit is


    BROCK and PARKER, JJ., concur.