
    Minnie Ida Dudley, Appellant, v. Abraham Abraham and Others, Respondents.
    Second Department,
    November 29, 1907.
    Negligence — fall on slippery floor.
    A plaintiff who slipped and fell near a drinking fountain in a department store' cannot recover on mere proof that there was water or some slimy substance on the floor, in the absence of evidence that the defendant was responsible for its presence or that the condition had existed long, enough to be discovered and cleaned up.
    Hooker, J., dissented, with opinion.
    . Appeal by the plaintiff, Minnie Ida. Dudley > from a judgment of the Supreme Court.in favor of the defendants, entered in the office of the clerk of the county of Kings on the 24th day of June, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 14th.day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      George F. Hikcey [M. P. O’ Connor with him on the brief], for the appellant. '
    
      Frederick Hulse, for the respondents.
   Gaynor, J. :

The plaintiff fell on the floor, about two feet from the projecting base of a stone drinking fountain in a large open space in the Centre of the defendants’ store. There were bowls and faucets at the top of the fountain, and'drinking cups chained there. It is impossible-to make out from the testimony of the plaintiff and her daughter whether they say she slipped on water or on grease or some slimy substance; and they were the only witnesses for the plaintiff on that head. The plaintiff said she looked at the floor after she fell, and continued : “ It was wet, and there was dirt — something slimy on it”. “After I fell I saw. a wet spot or something of that sort”. “ I do not think I could tell exactly how large was this wet spot ”. “ After I had fallen I saw there was something wet and slimy on that floor. I cannot tell you how large was that spot where I say looked wet; it was a run lengthwise, just where my heel had taken the water ”, “ I cannot recollect; all I can recollect is seeing the. mark of my heel on the wet floor, the impression where I had fallen ; that is all I can remember. I do not mean to say that that floor was all wet all around there. I cannot exactly say how large was this place where I say was wet; I would only have to guess at it ”. She said the mark made by her heel was about as long as the back of a chair (agreed upon by counsel as sixteen inches) and as wide as her heel. “ Aside from that mark I could not say how large ft place was it that was wet on that floor, because 1 do not recollect. I have no recollection only of looking and seeing the marks and the water, but I could not specify the length of it or the largeness of the spot ”. “ It was like slime — something slimy that I • had slid on the same as you would slide on a banana peel”. “ It looked just like grease or something that slid and made a ridge right into the wood; just like slime, water on the dirt ”. The daughter is equally indefinite. “ There was water, and it was slimy — you know how oil looks ”. “ There was quite a large-sized puddle, I should say there, of water, and she slid, and as she slid you could see just where her heel went”. “Well, it looked dirty looking to me”. She finally said the “puddle” was “just about as large as that book” (a volume of our reports).

Ho jury could do more than guess from this what the plaintiff slipped on, if she slipped at all. But if it could be found to be grease, or fruit, or some other slimy or slippery substance, there was no evidence that the defendants put it there, or that it had been there long enough for them to see it and clean it up. There is no way to prevent people, especially children, from dropping things on floors. And if it was only water, the case is the same. There is no evidence" that it came from the fountain. And it could not have come from there unless some one threw it on the floor needlessly or mischievously. It would be more reasonable to suppose that some child wet the floor, a thing common enough. Nor was a little water on the floor ever taken to be.dangerous until this action was brought. On wet days, and ivhen there is a snow fall, the floors of stores and public places are wet in many places from, the feet and dripping garments and umbrellas. It would be going altogether too far, and encouraging the bringing of cases like this, .of.which there are already too many, to hold as matter of law. that this case was for the jury (O' Reilly v. L. I. R. R. Co., 4 App. Div. 139; S. C., 15 id. 79; Kelly v. Otterstedt, 80 id. 398).

The judgment should be affirmed.

Miller and ¡Rich, JJ., concurred; Hooker, J., read for reversal 5 Hirschberg, P. J., not voting.

Hooker, J. (dissenting.):

The jury would have been justified in finding, had the case been submitted for its determination, that the plaintiff slipped upon a spot near a water fountain on the main floor of the defendants’ department store, which had the appearance of being wet and slimy. The public was tacitly invited to walk over the spot where plaintiff fell, and it was the duty of the defendants .to exercise reasonable care to keep the floor in a safe condition. (Quirk v. Siegel-Cooper Co., 43 App. Div. 464; Graham v. Bauland Co., 97 id. 141.) While it may be true, as urged by the respondents, that the mere , incidental spilling of water from the fountain upon the floor would not create a condition which a reasonable person would apprehend to be dangerous, the inferences most favorable to the plaintiff presenta different case. The jury were authorized to find that the defendants were not in the exercise of reasonable care in permitting that part of the floor where plaintiff fell to he in a slimy condition, for one might readily enough slip thereon. (See Dent v. Grimm, 65 App. Div. 81.)

The judgment and order should be reversed and a new trial granted, costs'to abide'the event.

Judgment and order affirmed, with costs.  