Cooke v. Great Atlantic & Pacific Tea Co., 204 N.C. 495 (1933)

April 5, 1933 · Supreme Court of North Carolina

204 N.C. 495

ERNEST H. COOKE v. THE GREAT ATLANTIC AND PACIFIC TEA COMPANY and A. T. SHEPARD.

(Filed 5 April, 1933.)

Negligence A c — Plaintiff must show negligence on part of store in order to recover for injuries sustained in fall therein.

Neither the owner nor the manager of a store is an insurer of the safety of its customers, and in order for a customer to recover for injuries resulting from slipping and falling on a banana peeling on the floor of the store he must establish negligence.

Appeal by plaintiff from Barnhill, J., at October Term, 1932, of GeaNville.

Affirmed.

This is an action to recover damages for personal injuries caused by tbe negligence of tbe defendants.

On Saturday nigbt, 24 October, 1931, tbe plaintiff while leaving tbe store of tbe defendant, tbe Great Atlantic and Pacific Tea Company, in Oxford, N. 0., where be bad purchased of tbe said defendant groceries and other merchandise, stepped on a banana peeling which was lying on tbe floor just outside tbe door, slipped and fell. Tbe banana peeling was on tbe floor of tbe entrance to tbe store from tbe sidewalk, about 18 inches from tbe door. Tbe door was 5 or 6 feet from tbe sidewalk. There were many customers in tbe store at tbe time of tbe accident. Defendant’s clerks and salesmen were busy waiting on these customers. Tbe defendant bad bananas in its store as a part of its stock of merchandise. Tbe defendant, A. T. Shepard, was tbe manager of tbe store, and in charge of tbe business of bis codefendant.

There was no evidence tending to show who threw tbe banana peeling on tbe floor of tbe entrance to tbe store, just outside tbe door, or bow long tbe banana peeling bad been there before tbe plaintiff stepped on it, slipped and fell. There was evidence tending to show that plaintiff was injured by bis fall, and that be sustained damages resulting from bis injuries.

At tbe close of tbe evidence for tbe plaintiff, tbe action was dismissed by judgment as of nonsuit, and plaintiff appealed to tbe Supreme Court.

T. Lanier for plaintiff.

Guthrie & Guthrie for defendants.

Per Curiam.

There was no evidence at tbe trial of this action tending to show that tbe plaintiff was injured by tbe negligence of tbe defendants, or of either of them.

Neither defendant was an insurer of tbe plaintiff, while he was in the store as a customer, or while he was leaving with the groceries and merchandise which he had purchased in the store. Bowden v. Kress, 198 N. C., 559, 152 S. E., 625. In the absence of any evidence tending to show that the defendants were negligent, there was no error in the judgment dismissing the action as of nonsuit. The judgment is

Affirmed.