
    Mildred C. KELLY et al., Appellants, v. GREAT ATLANTIC AND PACIFIC TEA COMPANY, a corporation, Appellee.
    No. 15852.
    United States Court of Appeals District of Columbia Circuit.
    Argued Nov. 8, 1960.
    Decided Dec. 8, 1960.
    Burger, Circuit Judge, dissented.
    Mr. Charles H. Quimby, Washington, D. C., for appellants.
    Mr. Jeremiah C. Collins, Washington, D. C., with whom Mr. Frank F. Roberson, Washington, D. C., was on.the brief, for appellee.
    Before Mr. Justice Reed, retired, Wilbur K. Miller, Chief Judge, and Burger, Circuit Judge.
    
      
       Sitting by designation pursuant to Section 294(a), Title 28 U.S.C.
    
   PER CURIAM.

While Mrs. Mildred C. Kelly was shopping in one of the appellee’s stores, she stepped into a slippery substance on the floor thought to have been the contents of a jar of baby food. In the complaint filed by her and her husband it was alleged that the appellee “knew, or in the exercise of ordinary case should have known” of the slippery condition of the floor “in sufficient time to have remedied the said slippery, dangerous and unsafe condition before the occurrence hereinafter set forth.” At the conclusion of the evidence, the trial judge directed a verdict for the defendant, whereupon this appeal was taken.

There was no evidence that appellee knew of the presence of foreign matter on the floor, nor did the proof show the condition had existed long enough to justify a holding of constructive notice. Brodsky v. Safeway Stores, 1945, 80 U.S.App.D.C. 301, 152 F.2d 677.

Affirmed.

BURGER, Circuit Judge

(dissenting).

In the present posture of the case, we are obliged to view the evidence in the light most favorable to appellant. That undisputed evidence shows that appellant walked down an aisle in a supermarket scanning the shelves for merchandise while pushing a grocery cart. She stopped and slipped on the contents of a broken jar of some slippery substance which presumably had fallen on the floor and spilled from its glass container. The contents of the jar are not explained or described except as “slippery” and covered an area one foot in diameter. At the instant of the fall and for at least five minutes preceding the appellant’s fall, one of appellee’s clerks was 10 feet from that point engaged in packing merchandise on the shelves. Appellant heard no glass container fall and, while she was in the aisle looking at the merchandise on shelves, did not see the danger.

The jar may have fallen before appel-lee’s clerk walked into the aisle in which case a jury could reasonably find that he should have seen it and taken steps to protect customers. Or the jar may have fallen after the clerk was stocking shelves 10 feet away, in which case a jury could reasonably find that the clerk should have heard or seen the fallen jar and the dangerous condition it created and that his failure to do so was negligence.

That this admittedly dangerous condition existed in a heavily traveled area rather than in an isolated unused spot, and that an employee was 10 feet from a dangerous condition of a size more readily observable by the clerk than by the customer engaged in scanning shelves for merchandise placed there for her to view, provides, for me, a jury question. Doctors Hospital, Inc. v. Badgley, 1946, 81 U.S.App.D.C. 171, 156 F.2d 569; Washington Market Co. v. Clagett, 1901, 19 App.D.C. 12; Louie v. Hagstrom’s Food Stores, Inc., 1947, 81 Cal.App.2d 601, 184 P.2d 708; Langley v. F. W. Woolworth Co., 1925, 47 R.I. 165, 131 A. 194, 196.

We said in Brodsky v. Safeway Stores, Inc., 1945, 80 U.S.App.D.C. 301, 152 F.2d 677, where a customer slipped on vegetable debris:

“If there had been evidence that the condition complained of had continued for a substantial time there might have been a question for the jury.”

Here the evidence can be read as showing that the broken glass jar and contents were present when a clerk worked 10 feet from it in a narrow aisle, or that it fell from the shelf 10 feet from his eyes and ears. In either case a jury’s conclusion that he should have known of it would be reasonable.

This case also illustrates the wisdom of the rule that cases like this should go to the jury for a verdict so that the question can come to us on a judgment notwithstanding the verdict.  