Freund, Proctor and Rogers. The opinion of the court was delivered by Proctor, J.A.D.
This is an appeal from a judgment in the Law Division of the Monmouth County Court upon a verdict in favor of the plaintiff.
Defendant contends that the trial court fell into error in submitting to the jury the question of defendant's liability, and that the verdict was against the weight of the evidence.
The injury complained of was the result of a fall of the plaintiff, a customer, in defendant's confectionery store. Plaintiff testified that he entered the store and walked in a normal manner down the aisle between the stools at the soda
counter and the tables, and fell because his left leg "skidded" as he was about to "reach" for the last stool. He then noticed a "skid" mark about 12 or 18 inches long and about an inch wide made by the heel of his shoe. He also noticed "soft wax plowed up on either side like you would scrape it with a putty knife or something;" further, that there were "various spots, especially along the counter and footrail of the soda bar where the wax was very heavy. You could scrape it off with your fingernail;" that the wax was about one-sixteenth of an inch thick and was of an amber color; that he picked up some of the substance.
An investigator for plaintiff testified that he later examined the floor at or near the spot where plaintiff fell, and that he rubbed his heel on the floor, leaving a mark about three or four inches long and about a quarter of an inch wide. He further testified, "The other part of the floor appeared to have been waxed with a rotary machine and there was indications of that over the rest of the floor." There was also testimony that no change had been made in the condition of the floor between the time of plaintiff's fall and the witness' inspection.
Three employees of defendant, one of whom was in charge of the store, testified to the effect that the floor was waxed by the Superior Floor Waxing Company and about 15 minutes after the floor was finished, the plaintiff entered. They further testified that the plaintiff came in walking "rapidly," and proceeded to the far end of the soda counter, where he fell; that after plaintiff's fall, they did not see any loose wax or "skid" marks on the floor. A customer testified substantially to the same effect.
The applicable rule is stated in Bosze v. Metropolitan Life Ins. Co. , 1 N.J. 5 (Sup. Ct. 1948), as follows:
"* * * that in order that negligence may be inferred from the fact of oiling or waxing a floor, it must appear that either in the nature or quantity of the substance used, or in the manner or time of its application, there was a departure from the normal or generally accepted standards so as to create a hazard of a tortious character for the users of the premises. Coyne v. Mutual Grocery Co., Inc. , 116 N.J.L. 36 (Sup. Ct. 1935); Abt v. Leeds & Lippincott Co. , 109 N.J.L. 311
(E. & A. 1932); Shipp v. Thirty Second St. Corp. , 130 N.J.L. 518 (E. & A. 1943)."
The Appellate Division in Knapp v. Seton Inn., Inc. , 5 N.J. Super. 226 (1949), in applying the above rule, held that evidence that there were "skid" marks on the floor after the fall and that the wax was soft and that there were ridges or indentations in the wax was sufficient to create a jury question, as to whether the defendant was negligent in the ...