Summary
In Hardgrove v. Isaly Dairy Co., 139 Ohio St. 641, 41 N.E.2d 862, the plaintiff slipped and fell in the defendant's store on water which had dripped from a soft drink bottle which another customer had carried across the floor some 2 minutes before the accident.
Summary of this case from Busler v. Cut Rate Super MarketOpinion
NO. 28934
Decided May 13, 1942.
Negligence — Customer injured by slipping on store floor — Actionable negligence not shown — No proof storekeeper had notice of slippery condition — Water dripped on floor from bottle carried by another customer — Want of care by customer sole and direct cause of injury.
CERTIFIED by the Court of Appeals of Summit county.
Mrs. Frankie Hardgrove brought an action in the Court of Common Pleas of Summit county, Ohio, against Isaly Dairy Company, a corporation, to recover damages for injuries sustained when she fell on the floor of the store of the defendant in Massillon, Ohio.
The plaintiff lives in Dalton, Ohio, and is a married woman about fifty years of age. About March 23, 1939, she went to Massillon with a friend to do some shopping. About 4:30 in the afternoon they went into defendant's store to get some refreshment and seated themselves at the first table beyond a soft drink container or cooler at which patrons were permitted and invited to serve themselves. While the plaintiff and her friend were seated at the table eating ice cream, another customer took a bottle from this container and walked across the floor and, as he went, water dripped from the bottle to the floor. About two minutes later plaintiff got up from the table where she was seated and, when she reached a point where the water had dripped from the bottle, her foot slipped and she fell, sustaining injury.
It appears that whenever a customer took a bottle from the container he was compelled to take it across the store to the cash register in order to pay for it. These bottles contained soft drinks and they stood in ice water in the container and when they were lifted out water always dripped on the floor and had been observed to be on the floor every day for some time previous. The floor was covered with linoleum or similar substance, but it was not at the time of the accident improperly waxed, defective or slippery except insofar as it was made so by the water that dripped from the bottle.
The trial resulted in a verdict and judgment for the plaintiff in the sum of $3,000 and on appeal the Court of Appeals reversed the judgment of the trial court. At the same time the Court of Appeals certified this case to this court upon the ground that the judgment was in conflict with the judgment of the case of McClintock v. Higbee Co., Court of Appeals of Cuyahoga county, Ohio, in which a motion to certify the record was overruled by this court (No. 28773).
Messrs. Motz Morris, for appellant.
Messrs. Wise, Roetzel Maxon and Mr. William A. Kelly, for appellee.
The contention here is that the Court of Appeals committed prejudicial error in entering final judgment for the defendant. This court cannot sustain the contention.
It is not claimed that there was any water on the floor when plaintiff entered the store. The dripping of the water on the linoleum or floor covering took place two minutes before plaintiff fell. There is no claim that the floor was unsafe or dangerous on that day prior to the time the water dripped and there is no proof that the defendant had actual notice that the water was on the floor. Two minutes would hardly be a reasonable time to wipe or mop up the water and certainly there would not be a lapse of sufficient time under the circumstances so that defendant could be said to have had constructive notice of the alleged slippery condition. Moreover, the failure to wipe the bottle off was the default or neglect of the customer. Under the circumstances no actionable negligence of the defendant was shown. Plaintiff saw and knew of the dripping of the water and did not use ordinary care to avoid slipping. We can only conclude that as a matter of law such want of care on her part was the sole and direct cause of the injury.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.
BETTMAN, J., not participating.