Opinion
No. 3248.
Decided June 25, 1941.
In an action by a customer against the owner of a grocery store for injuries caused by slipping on an alleged vegetable substance upon the floor the plaintiff is bound to prove that the substance was there when she was injured, and also that it had been there long enough to charge the defendant with notice of its presence.
In such case the plaintiff's evidence failed to prove that the alleged substance was on the floor before she fell.
The plaintiff's claim that the substance might have been tracked around the store on shoes of customers being qualified by no evidence eliminating the possibility that the plaintiff herself had such a substance on her foot when she fell, merely presented two equally possible causes of her injury between which the jury should not be permitted to choose.
The jury are not permitted to determine by guess or conjecture between two equally probable causes of an injury for only one of which the defendant is responsible.
Proof that a witness is absent or that he has been kept away by the opposite party is not a substitute for proof of essential facts.
CASE, for negligence, to recover damages for the injuries sustained by the plaintiff as a result of a fall on the floor of the defendant's store in Nashua. Trial by jury with a verdict for the plaintiff. Transferred by Connor, J. upon the defendant's exceptions to the denial of its motions for a nonsuit and directed verdict; to the refusal of the court to grant the defendant's requests for instructions, and to the charge of the court as given.
The plaintiff testified that she entered the defendant's store on June 16, 1939, and after making some purchases in the front of the store, proceeded to the canned goods department in the rear, where she made a purchase. As she was leaving this department, she fell between the two counters forming the entrance. She further testified as follows: "After I fell I could see a mark where my foot slipped and slid. Q. Will you describe the mark, Mrs. Jakel? A. It looked as if it were wet and green."
Other facts are stated in the opinion.
O'Connor O'Connor (Mr. Denis F. O'Connor orally), for the plaintiff.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Wadleigh orally), for the defendant.
There is no controversy between the parties as to the rule of law applicable to this case. They agree that it is stated with substantial accuracy in 2 Restatement of Torts, Section 343. Under the rule there stated, the plaintiff was bound to prove, 1, that there was a dangerous substance on the floor of the defendant's store when she was injured, and 2, that it had been there long enough to charge the defendant with knowledge of its presence. The plaintiff attempted to prove the presence of a dangerous substance on the floor of the defendant's store by her testimony that when she looked after her fall she saw a "mark" on the floor which looked "wet and green." The evidence of the defendant's manager, called as a witness by the plaintiff was that there was a black "scurf mark" on the floor and nothing else. From the plaintiff's statement that the mark looked "wet and green" it is argued that the jury might have found that she slipped on a vegetable substance of some kind. Assuming this to be so, the testimony of the plaintiff fails to prove that this substance was on the floor before she fell.
The plaintiff herself testified that, on her way into the canned goods department a few minutes before the accident, she passed over the spot where she fell and saw nothing on the floor. She also testified that she saw the defendant's manager pass in and out over the same spot three times within five minutes before she fell, but the manager testified that he saw nothing on the floor. Plaintiff's counsel, in order to charge the defendant with knowledge that vegetables might be found anywhere on the floor, developed at considerable length the theory that they might be tracked around the store on shoes of customers, but wholly failed to eliminate the possibility that the plaintiff had something on her foot when she fell. Having herself introduced this testimony, the plaintiff was not at liberty to disregard it. The possibility that some substance was adhering to the plaintiff's foot, was fully as consistent with her testimony as the possibility upon which she relies, namely, that there may have been some vegetable matter on the floor before her fall, and the jury was not at liberty "to determine by guess or conjecture between two equally probable causes of an injury, for one only of which the defendant is responsible. . . . Where the evidence discloses no connection between the injury and the alleged cause except a bare possibility that the former resulted from the latter, there is nothing for the jury where it is also possible that the injury may be due to other causes." Ahearn v. Company, 88 N.H. 287, 291, and cases cited.
The plaintiff also testified that, immediately after the accident, one of defendant's servants swept the floor where she fell. This testimony was denied by the servant who was charged with the sweeping, and plaintiff did not see what, if anything, was swept up. If this evidence were believed as establishing a suppression of evidence on the part of the defendant, the plaintiff was not thereby relieved from proving all essential facts upon which her case depended. "Proof that a witness is absent or that he has been kept away by the other side cannot take the place of proof of necessary facts." Login v. Waisman, 82 N.H. 500, 502, and cases cited.
In view of the conclusions here reached, it is unnecessary to consider the defendant's other exceptions.
Judgment for the defendant.
All concurred.