
    Kroger Grocery & Baking Co. v. Diebold.
    Jan. 17, 1939.
    
      DAYIS, BOEHL, YISER & MARCUS for appellant.
    JULIUS LEIBSON and CHAS. W. MORRIS for appellee.
   Opinion of the Court by

Judge Rees

Affirming.

Mrs. Elgie Diebold brought this action against the Kroger Grocery & Baking Company to recover damages in the sum of $5,150, for injuries received by her on May 30, 1936, in tbe defendant’s store located on the west side of Fourth Street in Louisville, Kentucky. She alleged that she was caused to and did slip on the floor of the store because of its dangerous, unsafe, and slick condition, and that such unsafe condition was known to the defendant or could have been known to it by the exercise of ordinary care and was unknown to her prior to the time she was injured. Upon the trial of the case the jury returned a verdict for the plaintiff for $500, and, from the judgment entered thereon, the defendant has appealed. It seeks a reversal of the judgment chiefly on the ground that the trial court erred in overruling its motion for a directed verdict in its favor. It also argues that the instructions given by the court are erroneous.

Appellee, accompanied by her sister, Mrs. Minerva Simpson, went into appellant’s store in the afternoon of May 30, 1936, for the purpose of purchasing soap. She testified that as she was passing the fish counter her left foot slipped and she fell, breaking a bone in her foot and suffering other injuries of which she complained in her petition and on the trial. She stated that after she fell she discovered that she had stepped on a wet spot on the floor which caused her to slip and fall. Mrs. Simpson testified that her sister fell near the fish counter, and that she saw water dripping from the counter onto the floor which produced the wet, slick spot on which her sister slipped. Mrs. Dollie M. YeYoto, a witness for Ihe defendant, testified that she was in the defendant’s store on May 30, 1936, demonstrating the products of a wholesale. firm by which she was employed, and that she was stationed at a counter across the aisle from the fish counter. She saw Mrs. Diebold fall, and heard her say she was all right after she had been assisted to her feet. The witness said Mrs. Diebold fell at a point in the aisle six feet east of the east end of the fish connter and on the opposite side of the aisle. She examined the floor at the point where Mrs. Diebold fell, and saw no water or other foreign substance. She also stated that there was no wet spot on the floor near the fish connter. Appellant’s branch manager, who was in the store and saw the accident, and a number of the store employees testified that appellee fell six or eight, feet east of the east end of the fish connter, and that there was no wet spot at that point or any other point in the aisle. Appellant’s branch manager described the fish • connter, and he and other employees of appellant testified that on the occasion in question the ice did not extend above the side of the compartment in which the fish were displayed and water from the melting ice therefore could not have dripped onto the floor. The compartment was lined with porcelain, and a drain pipe led from it to the basement and thence to a sewer in the street. Large blocks of ice were placed in the compartment and on top of these blocks were placed crashed ice and fish. Mrs. Simpson testified that the crashed ice was stacked higher than the side of the connter next to the aisle, and water from the melting ice ran over the edge of the connter and dripped onto the floor. Appellant’s witnesses stated that this was impossible, but their statements were based on the theory that the ice did not extend above the side of the connter or compartment nearest to the aisle.

Photographs of the interior of the store showing the fish connter were introduced in evidence, and from these and other evidence found in the record it is obvious that water will drip onto the floor if the ice is stacked higher than the side of the connter. Neither ap-pellee nor her sister knew, of course, how long the water had been on the floor. It is argued by appellant that, since it was not shown by the appellee that any of appellant’s agents or servants knew of the presence of the water on the floor or that it had been there such a length of time before the accident happened as to impute notice to them, a peremptory instruction should have been granted. A number of cases are cited in support of this contention, but all of them present situations where the unsafe condition was created by a third person and not by the defendant or his agents or servants. Under such a state of facts, it is a well-settled rule that the storekeeper is not liable for injuries received by one of bis customers unless the unsafe condition was known to bim or could have been known to bim by the exercise of ordinary care. Tbe general rule is that tbe proprietor of a store must exercise ordinary care to keep the premises in a reasonably safe condition so as not unnecessarily to expose bis customers to danger. He is not an insurer of tbe safety of bis customers while on the premises, but is liable only for injuries resulting from negligence on his part. F. W. Woolworth Company v. Brown, 258 Ky. 29, 79 S. W. (2d) 362; Kroger Grocery & Baking Company v. Monroe, 237 Ky. 60, 34 S. W. (2d) 929; Bridgford v. Stewart Dry Goods Company, 191 Ky. 557, 231 S. W. 22; Shapinsky & Co. v. Sapp, 153 Ky. 214, 154 S. W. 910; Russell v. Stewart Dry Goods Company, Ky., 56 S. W. 707, 22 Ky. Law Rep. 121. Negligence may consist either in failure on tbe part of tbe store proprietor to discover tbe dangerous condition, though created by a third person, within a reasonable time, or in tbe creation of tbe dangerous condition by himself or bis agents or servants. Where be has created a dangerous condition or negligently permitted such condition to exist, knowledge on bis part is inferred. Lyle v. Megerle, 270 Ky. 227, 109 S. W. (2d) 598; Rogers v. J. C. Penney Company, 127 Neb. 885, 257 N. W. 252; 45 C. J. 653. In the present case, if there was any negligence on tbe part of appellant it consisted in stacking tbe ice on tbe fish counter in such a manner as to cause water to drip onto tbe floor. There was no evidence from which it could reasonably be inferred that this condition was created by a third person.

Tbe instruction given by tbe court required tbe jury to believe that tbe appellant negligently permitted water to drip or flow from the fish display counter to tbe floor and in tbe passageway used by tbe customers of tbe store before they could find for tbe appellee. Tbe preponderance of the evidence supported appellant’s claim that appellee did not fall at tbe fish counter, and that there was no water on tbe floor at tbe point where she did fall, but it is not claimed, and we are unable to say,, that tbe verdict is flagrantly against tbe evidence. A directed verdict in a personal injury action is proper only when there is no conflict in tbe evidence or it is susceptible of but one interpretation by reasonable men. Here there was sharp conflict in the evidence, as to where appellee fell and whether or not there was water on the floor, and while the preponderance of the evidence supported appellant’s theory on these issues, yet the weight to be given the evidence and the credibility of the witnesses were questions to he determined by the jury.

The instructions are criticised because they did not submit to the jury the question of notice. Since, as we have seen, notice to appellant was inferred under the circumstances, an instruction on notice was not necessary. Appellant tendered an instruction to the effect that if the appellee fell at the place testified to by the employees of appellant', which was six or eight feet east of the fish display counter, and that at said place there was no foreign substance or water on the floor, then the jury should find for the defendant. The court’s refusal to give the tendered instruction is relied upon as a reversible error, hut we think the instructions given clearly presented the issues in the case. Under them the jury was required to believe that the plaintiff had been caused to fall by water in the passageway which had dripped from the fish display counter, and unless they so believed they were directed to find for the defendant.

Finding no error prejudicial to appellant’s substantial rights, the judgment is affirmed.  