#### MRS. ANNIE ESTHER LEE v. H. L. GREEN & COMPANY, INCORPORATED, Trading and Doing Business Under the Name and Style of SILVER’S FIVE AND TEN CENT STORE.

(Filed 22 August, 1952.)

1. Negligence § 4f—

While a proprietor of a store is not an insurer of the safety of its customers, he is under duty to exercise ordinary care to keep the aisles and passageways where customers are expected to go in a reasonably safe condition and to give warning of hidden dangers or unsafe conditions of which he knows or in the exercise of reasonable supervision and inspection should know.

2. Same—

The doctrine of *res ipsa loquitur*does not apply to injuries resulting from slipping or falling on the oiled floor of a store.

3. Same—

In order for a customer to recover for injuries sustained in falling upon an oiled floor of a store, the customer must introduce evidence tending to show that the proprietor had the floor oiled or permitted it to be oiled in an improper manner so as to leave it in an unsafe condition.

4. Same—

Plaintiff’s evidence was to the effect that she slipped and fell on an aisle in defendant’s store at a place that was slick with excessive oil or grease', that all of the floor in this portion of the store appeared to have been oiled or greased, and that the application was fresh at some spots and dry at others, with greater accumulations of oil or grease at some places than at others. *Held:*The evidence was sufficient to make out a *prima facie*case and take the issue of negligence to the jury.

5. Same—

Where the evidence tends to show that the floor of an entire portion of a store had been given some general type of oil treatment, improperly applied so that more oil was allowed to accumulate at some places than at others, *held:*It is not incumbent upon plaintiff to show when or by whom the treatment was applied or the mode of procedure followed in applying it, since the fact of its general application supports the inference that it was oiled by or under the direction or supervision of the proprietor, and therefore knowledge of the proprietor of the hazardous condition may be inferred, since no one needs notice of that which he knows.

Barnhill, X, dissenting.

Winborne and Denny, JX, concur in dissent.

*84Appeal by plaintiff from *Pless'J.,*I January Term, 1952, of Guileoed (Greensboro Division). Reversed.

Civil action to recover damages for personal injuries sustained by plaintiff as a result of slipping and falling on the floor of defendant’s store.

The plaintiff, a housewife about 53 years of age, after purchasing some articles on the first floor of the defendant’s store in Greensboro, went down the stairway to the basement to make other purchases. At the bottom of the stairway she turned to the right and after going 12 or 15 feet from the bottom step her right foot slipped out from under her at a slick place on the floor and she fell, fracturing her hip and sustaining other personal injuries. The floor was made of tongue and grooved wood material.

The plaintiff’s narrative of the occurrence is in substance as follows: “At the moment my foot slipped, I was looking at the things offered on the counter by my right side. When I fell, the merchandise I had bought flew across the floor. ... I had on medium heels. . . . My ankle did not turn. . . . After I got up or was picked up, I observed the place where I had fallen was dark, greasy, and slippery looking. There seemed to be right much oil or grease or something where I was. . . . There was dirty grease and dirt and grease on my hose and on my dress and my arm, where I laid back on the floor, which appeared to be dark, greasy, and slick. . . . When the man first picked me up, I brushed off all I could get off the hose and dress and off my arm, . . . the oil went through my hose onto my knee. I fell on my right knee and it Avent through the hose onto my flesh and skin.” She further testified that no one gave her any Avarning and there Avere no placards to indicate there was oil or grease on the floor. On cross-examination she said she did not look at the floor as she went down the aisle before she fell. As she put it: “I did not expect there to be anything on the floor.”

The plaintiff’s husband, in relating what he saw on arriving at the store immediately after her fall, stated that he examined the floor. He testified: “I looked all over it. There about where she AAras, all the way across, it was greasy. ... In some places the oil and grease on the floor appeared to be dry. ... It appeared to be fresh at some spots and dry at others. ... In some places grease and smudges on the floor were heavier . . . than in others. . . . My wife showed me the place where she had slipped and fallen. ... It looked like it had been sort of rubbed on, sort of smeared around a little. . . . The greasy spot near my wife coA^ered a pretty good area in that section. . . . The place where I observed my wife had fallen Avas slick.” The fall occurred during business hours on Saturday afternoon at about 4:30 o’clock.

The case comes here on appeal from judgment as of nonsuit entered at the close of the plaintiff’s eAudence.

*85*H. L. Koontz and Clyde A. Shreve for plaintiff, appellant.*

*Smith, Sapp, Moore & Smith for defendant, appellee.*

JohnsoN, J.

Tbe evidence in this case when analyzed in the light of the controlling principles of law is sufficient, we think, to make out a *prima facie*case of actionable negligence for the jury.

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. *Ross v. Drug Store,*225 N.C. 226, 34 S.E. 2d 64; *Watkins v. Furnishing Co.,*224 N.C. 674, 31 S.E. 2d 917; *Brown v. Montgomery Ward*& *Co.,*217 N.C. 368, 8 S.E. 2d 199; *Parker v. Tea Co.,*201 N.C. 691, 161 S.E. 209; *Bowden v. Kress & Co.,*198 N.C. 559, 152 S.E. 625.

However, such proprietor is not an insurer of the safety of customers and invitees who may enter the premises, and he is liable only for injuries resulting from negligence on his part. *Pratt v. Tea Co.,*218 N.C. 732, 12 S.E. 2d 242; *Bowden v. Kress & Co., supra.*

Moreover, the doctrine of *res ipsa loquitur*does not apply to injuries resulting from slipping or falling on the floor of a store which has been oiled. *Harris v. Montgomery Ward & Co.,*230 N.C. 485, 53 S.E. 2d 536; *Parker v. Tea Co., supra; Bowden v. Kress & Co., supra.*

Therefore, it is not negligence *per se*to have an oiled floor in a store, or to apply oil to a floor, if it is applied in a reasonably prudent manner. The standard of care which the law requires of a storekeeper in oiling floors is that degree of care which persons of ordinary care and prudence are accustomed to use in oiling floors, having due regard both for the objects to be accomplished and the rights of those who are expected to frequent the store. Thus, in order for an injured person to recover in such a case, ordinarily there must be evidence sufficient to support the inference that from want of ordinary care on the part of the proprietor the floor was improperly oiled and left in an unsafe condition. *Parker v. Tea Co., supra; Bowden v. Kress & Co., supra.*See also : 38 Am. Jur., Negligence, Sec. 136, p. 798; 65 C.J.S., Negligence, Sec. 81, p. 589.

We think the evidence here, when viewed with the degree of liberality required on motion for nonsuit, was sufficient to sustain, though not necessarily to impel, a jury-finding of all the essential elements of actionable negligence: (1) That prior to the plaintiff’s fall the defendant had applied or caused to be applied upon and allowed to remain on its basement *86floor an oily floor dressing or covering of some type which was of a slick and slippery nature, and respecting which the defendant failed to exercise ordinary care by permitting it to be applied and to accumulate and remain on the floor in such quantities and condition, more in some places than in others and dry in some places and wet in others, so as to render unsafe passage along and about the aisles and display counters where customers and invitees were expected to go, thus creating a danger which in the exercise of ordinary care was not observable by the plaintiff but of which the defendant was chargeable with notice and failed to exercise due care to give plaintiff warning; and (2) that the plaintiff slipped and fell at a place in the aisle where, from want of due care on the part of the defendant, the oily substance had been applied in excessive quantity or left wet upon the floor without timely notice, and that the plaintiff’s fall and injuries resulted from the unsafe condition so created and existing, and were proximately caused by the improper and negligent manner in which the oily floor dressing was so applied or left by the defendant on the floor without notice to the plaintiff.

That the evidence offered below is sufficient to carry the case to the jury is supported by well-considered decisions of this Court, among which these seem to be closely in point: *Bowden v. Kress & Co., supra; Parker v. Tea Co., supra; Anderson v. Amusement Co.,*213 N.C. 130, 195 S.E. 386. Also, for numerous supporting decisions from other jurisdictions, see Annotations: 33 A.L.R. 181; 43 A.L.R. 866; 46 A.L.R. 1111; 100 A.L.R. 710; 162 A.L.R. 949.

In *Parker v. Tea Go.., supra,*the controlling facts are strikingly similar to those shown by the evidence in the instant case. In the *Parker case,*the plaintiff slipped and fell in a grocery store as she was walking toward the meat counter. The fall occurred on Monday morning after the floor had been oiled the previous Saturday night. The gist of plaintiff’s narrative of the occurrence is as follows: “Both feet slipped out from under me. . . . There was a damp place on the floor, — looked like oil. It appeared to be oil and had dried more in some places than in others. Where I stepped was one of the damp places. Some of the planks at this place looked practically dry, and then there were streaks on them that looked damp, as if it was damp with oil and it was more so in the place where I walked. . . . There seemed to be on part of the boards little streaks that didn’t seem to be perfectly dry. I could detect the exact point where I stepped and at that point there was a greater accumulation of oil. . . . My hose had a big spot of oil on them.” The evidence offered was held sufficient to support the inference that the floor was improperly oiled, and *Bowden v. Kress, supra,*was cited as controlling authority.

The defendant seeks to distinguish the instant case from *Parker v. Tea Go., supra,*on the ground that here there is no direct evidence, as in *87tbe *Parker case,*tbat tbe defendant bad caused tbe floor to be oiled. True, in tbe instant case, tbe plaintiff offered no direct testimony respecting when or by whom tbe alleged oily dressing was applied to tbe floor, or concerning tbe exact descriptive character of tbe substance found on tbe floor. Nor did anyone testify concerning tbe mode of procedure followed in applying tbe oil.

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 tbe case may not be withdrawn from tbe jury simply because tbe plaintiff or her witnesses did not see tbe oil applied or know when or by whom it was applied or relate tbe precise details respecting tbe kind and quantities of oil applied or tbe mode of procedure followed in applying it. Where tbe facts in respect to these things are reasonably inferable from tbe plaintiff’s evidence, as in tbe present case, it is not imperative, under pain of suffering a nonsuit, tbat tbe plaintiff go further and indulge in tbe exploratory procedure of looking for bystanders who were present when tbe floor was oiled, or calling to tbe stand employees of tbe defendant who may have first-hand knowledge'of tbe method followed in applying tbe oil: Tbe 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, Sec. 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. Kress & Co., supra.*

In tbe instant case tbe existence of these elements of actionable negligence are reasonably inferable from tbe whole of tbe evidence. Pertinent as bearing thereon are these portions of tbe testimony of tbe plaintiff’s husband, who said be examined tbe floor: “I looked all over it. . . . all tbe way across it was greasy. ... In some places grease and smudges on tbe floor were heavier . . . than in others. ... In some places tbe oil or grease on tbe floor appeared to be dry. ... It appeared to be fresh at some spots and dry at others. . . . Tbe place where I observed my wife bad fallen was slick.”

Also, an examination of tbe facts in *Parker v. Tea Go., supra,*discloses tbat tbe direct evidence tbat tbe floor was oiled, as well as tbe details of tbe procedure followed in applying tbe oil, was introduced by tbe defendant after tbe plaintiff bad offered her evidence and rested her case, and it is apparent tbat tbe evidence so offered by tbe defendant was not of controlling or decisive importance on the question of nonsuit in tbe *Parker case.*

*88Factually distinguishable are the cases relied on by the defendant, chiefly among which are: *Pratt v. Tea Co., supra; Fanelty v. Rogers Jewelers, Inc.,*230 N.C. 694, 55 S.E. 2d 493; *Barnes v. Hotel Corp.,*229 N.C. 730, 51 S.E. 2d 180.

In *Pratt v. Tea Go., supra,*the evidence disclosed a greasy, dirty looking spot about 10 inches long and 7 or 8 inches wide. There was no evidence tending to show that the store floor had been oiled or that the spot was a part of or had its origin in any general type of oil treatment of the floor. Therefore, nothing else appearing, it was not inferable that the greasy spot was either (1) created by the defendant, or (2) had been there long enough for the defendant, in the exercise of ordinary care, to have discovered and removed it, or given warning of its existence. Thus, for want of these crucial proofs, the nonsuit below was aflirmed.

Similarly, in *Panelty v. Rogers Jeiuelers, Inc., supra,*the evidence disclosed that the plaintiff slipped on a slick spot or place on the terrazzo entryway outside the defendant’s store door. There was no evidence tending to show who, if anyone, had placed a foreign substance of any kind on the floor of the entryway. It was not disclosed how long the slick spot had been there, nor did it appear to be part of a general type of oil, wax, or like treatment. Hence, in the absence of evidence as to how long the slick spot had been present, no inference of. negligence on the part of the defendant was deducible from the single fact of a slippery spot on the terrazzo floor outside the defendant’s door.

In *Barnes v. Hotel Gorp., supra,*the plaintiff slipped on the marble floor in the hall entryway to the elevators on the third floor of the O. Henry Hotel in Greensboro. There, the nonsuit below was sustained for want of any evidence, direct or circumstantial, tending to show that “any unusual material had been used in cleaning or polishing the floor or that such material had been applied in an improper, unusual or negligent manner.” It also appeared that the plaintiff had been a regular guest of the hotel for about 12 years, and she testified that as she came out of her room to the elevator entrance “she looked at the whole area and saw nothing out of the ordinary.”

A number of decisions relied on by the defendant involve hazardous conditions which reasonably may have been produced by the act of a third party or weather conditions, or by other causes over which the storekeeper had no direct control — like puddles of loose oil or spots made by other foreign substances — under circumstances requiring the plaintiff to prove that the defendant proprietor was chargeable with notice of the dangerous condition. See *Panelty v. Rogers Jewelers, Inc., supra; Pratt v. Tea Go., supra,*and cases cited.

In the instant case, however, there is no such factual background. Here, the evidence is sufficient to support the inference that the hazardous *89condition complained of was created by or under tbe direction or sufferance of tbe defendant in connection with a general application of floor oil; therefore, if sucb permissive inference should be drawn by tbe jury, then it follows as a necessary corollary that knowledge of tbe hazardous condition so created by tbe defendant would be inferred. In sucb circumstances, it would be far afield to say that a defendant might by bis own act create a hazardous condition and then demand that one injured thereby should be required to prove tbe defendant’s knowledge of sucb condition. It is elementary in tbe trial of negligence cases that where tbe alleged dangerous condition is shown to have been created by tbe person claimed to be liable, no further notice to him is necessary. No one needs notice of that which be knows. 65 C.J.S., Negligence, Sec. 5, p. 354; *Hulett v. Great Atlantic & P. Tea Co., supra; Bury v. F. W. Woolworth Co.,*129 Kan. 514, 283 P. 917. What is here said is in accord with tbe rule of liability defined and applied in *Pratt v. Tea Go., supra.*

For tbe reasons stated, tbe judgment below is

Reversed.

BaeNhill, J.,

dissenting: There is ample evidence in tbe record tending to show that tbe defendant’s basement floor was oily at tbe place where plaintiff says she fell, and that tbe oil proximately caused her fall. But bow long bad tbe oil been on tbe floor at tbe time of tbe accident ? This tbe record does not disclose. Who put tbe oil on tbe floor ? As to this tbe record is silent. Plaintiff did not undertake to show who put tbe oil on tbe floor or bow long it bad been there. *Pratt v. Tea Co.,*218 N.C. 732.

All agree that, to establish negligence on tbe part of tbe defendant, plaintiff must offer some evidence tending to show either that one of defendant’s employees oiled tbe floor in sucb a careless and negligent manner that it created an unnecessary and additional hazard to customers entering tbe building, or that tbe additional hazard, being created by a third party, bad existed for sucb a length of time that tbe owner knew or by tbe exercise of ordinary care should have known of its existence. Sucb proof is essential to plaintiff’s cause of action. As I read tbe record, she has failed in this respect to make out a case for tbe jury.

The majority opinion is not sustained by tbe authorities cited. In *Parker v. Tea Co.,*201 N.C. 691, and *Anderson v. Amusement Co.,*213 N.C. 130, there was evidence that tbe slippery substance was applied by one of defendant’s employees. In *Bowden v. Kress,*198 N.C. 559, there was evidence that tbe unsafe condition bad existed for more than a week— a time within which tbe defendant in the<exercise of ordinary care should have discovered and eliminated tbe hazard. Tbe numerous cases listed in tbe A.L.R. annotations cited in tbe majority opinion likewise follow tbe same rule; that is, tbe plaintiff must show that tbe hazard was created *90by the defendant or had existed for such a length of time that he knew, or in the exercise of ordinary care should have known of its existence.

This case takes us a bowshot beyond any decision we have heretofore rendered. It holds, in effect, that when plaintiff proves there was oil or some other slippery substance on the floor where she fell the jury may, from this fact alone, infer that it was placed there by the owner or one of his employees. To this I cannot agree. I therefore vote to affirm.

"Winbobne and Denny, JJ., concur in dissent.