Lee v. H. L. Green & Co.

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 *90 by 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.