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Burdge v. Retail Department Stores of America Inc.

Decided: December 2, 1942.

CATHERINE BURDGE, PLAINTIFF-APPELLANT,
v.
RETAIL DEPARTMENT STORES OF AMERICA, INC., AND SCHULTE UNITED, A BODY CORPORATE, DEFENDANTS-APPELLEES



On appeal from the Monmouth County Common Pleas Court.

For the plaintiff-appellant, Parsons, Labrecque & Borden (Theodore J. Labrecque, of counsel).

For the defendants-appellees, Wilbur A. Stevens.

Before Brogan, Chief Justice, and Justices Parker and Porter.

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. This appeal is from a judgment of nonsuit in the Common Pleas Court of Monmouth County. The plaintiff, Catherine Burdge, while a customer in the defendant's store, slipped on the floor which had been oiled and, falling, suffered certain injuries. Her theory of the defendant's liability is that the dangerous condition which caused her mishap was created by the defendant's servants or agents and that that condition resulted from the negligent application of oil to the floor in the store premises.

Whether the court, on the facts in proof, was correct as a matter of law in granting the defendant's motion for a nonsuit is the question in this appeal. There is also a subsidiary question which is whether the court erred in excluding a question addressed to the witness, Helen Canzona, which was intended to bring out what was said about the

accident by one of the defendant's employees at the time of the happening.

At the end of the plaintiff's case the following facts were in evidence and consequently had to be regarded as true for the purposes of the motion: that the plaintiff, a customer, entered the defendant's store and walked towards the rear thereof; that she "went down the left middle aisle of the store" and reached a point that she described as the "middle of the second counter" when she slipped and fell; that upon examination of the floor it appeared to have been "freshly oiled * * *;" that the whole floor had been freshly oiled "but there was far more [oil] in that one particular spot than the rest of the floor;" that the "spot" (i.e., place of the accident) was about a foot long by three inches wide; "that the oil was thicker at that point than on the rest of the floor that had been oiled;" and specifically as to how much oil there was at the place where she fell, that "it was quite heavy there right at that particular spot." The foregoing is the pertinent part of the plaintiff's testimony on direct examination.

Interrogated on cross-examination as to why she stated that the floor had been "freshly" oiled, the witness said in substance she could tell by its appearance, by its odor and by her familiarity with floor oil which she used in her own home. Her testimony was supported by that of Miss Canzona, her shopping companion on the day in question. This witness said she was familiar with oily floors; that the floor in the defendant's store at the time when the accident occurred was damp and that "in certain places it was wetter than other places; * * * it appeared as though it had just been oiled;" that the floor on this day was "darker or wetter" than usual; that she had frequently been in the store before; that the floor smelled of the oil; that when she went to the assistance of Mrs. Burdge after the accident, the oil adhered to plaintiff's shoe and stocking; that there was more oil on the spot where plaintiff fell "than on the rest of the place."

The court, on granting motion for nonsuit, was persuaded that the case of Coyne v. Mutual Grocery Store, Inc., 116 N.J.L. 36, was exactly in point and that the principles enunciated in ...


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