250 N.W. 362
189 Minn. 523

Theodosia HASTINGS
F.W. Woolworth Company, Inc.

No. 29,382

Supreme Court of Minnesota

October 6, 1933

Action in the district court for Hennepin county to recover damages for personal injuries sustained by plaintiff while a customer in defendant's store. Plaintiff alleged negligence on the part of defendant. The case was tried before Winfield W. Bardwell, Judge, and a jury. At the close of plaintiff's case the court directed a verdict for defendant, and plaintiff appealed from the judgment entered pursuant thereto after denial of her motion for a new trial. Reversed and new trial granted.

Sarah Gensler Schwartz, for appellant.

Cobb, Hoke, Benson, Krause & Faegre and Bradshaw Mintener, for respondent.

Loring, Justice, took no part.

Negligence—care required of shopkeeper as to customers.

1. A shopkeeper or merchant owes to customers upon his premises the duty of ordinary care in respect of the safe condition of his premises for their use.

Negligence—proximate cause of injury.

2. The evidence would sustain a finding of the jury that there was a hole in the floor in the retail five-and-ten-cent store of the defendant in Minneapolis; that the heel of one of the shoes of the plaintiff, a customer in the store, caught in the hole as she was passing in an aisle; that she was caused to fall and was injured; that the defendant was negligent in having the floor in such condition; and that its negligence in this respect was the proximate cause of the plaintiff's injury. A verdict should not have been directed for the defendant.

DIBELL, Justice.

Action to recover for personal injuries sustained by the plaintiff, a customer in the store of the defendant, through its negligence. The court directed a verdict for the defendant, pursuant to which judgment was entered. The plaintiff appeals from the judgment.

1. There is no mystery in the law relative to the duty of a shopkeeper or merchant to his customers in his store. In Ober v. The Golden Rule, 146 Minn. 347, 178 N.W. 586, the rule is stated by Judge Lees in this way:

"A shopkeeper is under legal obligation to keep and maintain his premises in reasonably safe condition for use as to all whom he expressly or impliedly invites to enter the premises."

The merchant is not an insurer of the safety of his premises. Ordinary care in respect of them is owing his customers. It is hardly worth the time to discuss the cases. The following, though not parallel in their facts, are of illustrative value: Corrigan v. Elsinger, 81 Minn. 42, 83 N.W. 492; Albachten v. The Golden Rule, 135 Minn. 381, 160 N.W. 1012; Duffy v. Stratton, 169 Minn. 136, 210 N.W. 866; Landy v. Olson & Serley S. & D. Co., 171 Minn. 440, 214 N.W. 659; Poppleston v. Pantages M.T. Co., 175 Minn. 153, 220 N.W. 418; Tierney v. Graves Motor Co., 185 Minn. 114, 239 N.W. 905. The Minnesota cases are gathered in 4 Dunnell, Minn. Dig. (2 ed. & Supp.) §§ 6984-6987. The cases over the country are collected in a note in 33 A.L.R. 181-231; and in Am. Dig. Negligence, § 32(1).

2. The defendant operates a five-and-ten-cent store in Minneapolis. The plaintiff claims that when she was in the store, walking in an aisle, she stepped on a waxy paper, that the floor was slippery, that the heel of one of her shoes caught in a small hole in the floor, causing her to fall, and that her ankle was wrenched. She sustained an injury. On the present record it cannot be said that the presence of the paper or the slipperiness of the floor was ascribable to the negligence of the defendant. At the most they were conditions or circumstances attending the injury and in no sense the sole cause of it. It could be found by a jury that the hole in the floor was the result of the defendant's negligence and that its negligence in this respect was a proximate cause of the injury.

There is evidence that the hole to which the plaintiff testified, when it was examined the next day, did not appear to be a fresh one. Just its nature is not shown. It was large enough to admit the heel of a shoe. It is true that the testimony offered by the plaintiff as to its condition the next day did not certainly identify it as the one which caused the injury; but there was some evidence that it was. The issue of negligence was for the jury, and a verdict should not have been directed for the defendant.

We note that the motion to direct a verdict was made when the plaintiff rested. The defendant did not rest; nor did it offer testimony. The fact is not important now, but we mention it so that it may be understood that it was not overlooked. See 6 Dunnell, Minn. Dig. (2 ed. & Supp.) §§ 9765, 9766.

The judgment is reversed with directions to grant a new trial.

Judgment reversed.

OLSEN, Justice (concurring).

I concur in the result.