BARNHILL, J., dissenting.

WINBORNE and DENNY, J.J., concur in dissent.

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 went through the hose onto my flesh and skin." She further testified that no one gave her any warning and there were 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 was, 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 covered a pretty good area in that section. . . . The place where I observed my wife had fallen was 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 evidence.

JOHNSON, J.

The 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 floor 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 Co., 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 Co., supra, on the ground that here there is no direct evidence, as in the Parker case, that the defendant had caused the floor to be oiled. True, in the instant case, the plaintiff offered no direct testimony respecting when or by whom the alleged oily dressing was applied to the floor, or concerning the exact descriptive character of the substance found on the floor. Nor did anyone testify concerning the mode of procedure followed in applying the 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 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, 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 the instant case the existence of these elements of actionable negligence are reasonably inferable from the whole of the evidence. Pertinent as bearing thereon are these portions of the testimony of the plaintiff's husband, who said he examined the floor: "I looked all over it. . . . all the way across it was greasy. . . . In some places grease and smudges on the floor were heavier . . . than in others. . . . In some places the oil or grease on the floor appeared to be dry. . . . It appeared to be fresh at some spots and dry at others. . . . The place where I observed my wife had fallen was slick."

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

Factually 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 Co., 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 affirmed.

Similarly, in Fanelty v. Rogers Jewelers, 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 Corp., 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 Fanelty v. Rogers Jewelers, Inc., supra; Pratt v. Tea Co., 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 condition complained of was created by or under the direction or sufferance of the defendant in connection with a general application of floor oil; therefore, if such permissive inference should be drawn by the jury, then it follows as a necessary corollary that knowledge of the hazardous condition so created by the defendant would be inferred. In such circumstances, it would be far afield to say that a defendant might by his own act create a hazardous condition and then demand that one injured thereby should be required to prove the defendant's knowledge of such condition. It is elementary in the trial of negligence cases that where the alleged dangerous condition is shown to have been created by the person claimed to be liable, no further notice to him is necessary. No one needs notice of that which he 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 the rule of liability defined and applied in Pratt v. Tea Co., supra.

For the reasons stated, the judgment below is

Reversed.