Eastwood, Bigelow and Francis. The opinion of the court was delivered by Francis, J.c.c.
This is a negligence action. Plaintiffs are husband and wife. The wife sought recovery on account of personal injuries, and the husband joined because of his consequent losses. At the close of the trial, after both sides had completed the submission of proof, the motion of defendants for judgment in their favor was granted. Plaintiffs appeal from the judgment thus entered, contending that the matter should have been submitted to the jury for determination.
Defendant, American Stores Company, operated a self-service supermarket at 744 Anderson Avenue, Cliffside Park, New Jersey, and on the date of the accident in question, the
defendant, John Duffy, was its manager. Meat, vegetables and general foodstuffs were offered for sale to the public.
The vegetables were displayed in counter bins located on both sides of an aisle which at the point of the female plaintiff's fall was somewhat over nine feet wide.
On September 25, 1950, at about 10 A.M., the plaintiff, Ella Simpson, came into the store to make some purchases. She took one of the wire pushcarts provided for customers and first went to the meat counter. After giving an order she walked down the aisle of the vegetables. While doing so she observed two employees working there. One was trimming vegetables and the other was carrying them across the aisle and placing them in the display bins. The trimming was being done near a scale on the north side of the aisle and the show bins in which the vegetables were being deposited were on the south side. As she reached a point near the vegetable bins, on the opposite side of and some distance west of the scale, she suddenly slipped and fell. The cause of the fall was unknown to her until after it occurred. After being picked up and seated on a box four or five feet away she could see that it had been caused by "some sort of green vegetable * * *, it was dripping all over"; "some sort of a vegetable leaf"; "a vegetable leaf or some piece of a vegetable of another kind * * *." An employee of the defendant mopped it up.
No evidence was adduced as to the length of time the vegetable matter was on the floor before the accident.
It appeared that the market opened at 8 A.M. Defendants' proof was to the effect that the floor involved was swept at 8:30 to 9 o'clock. At the place where the fall occurred the floor was clean; it was not wet nor did it have any vegetable matter on it.
An employee of the market, who saw the mishap, found on the floor what he described as a fresh piece of gum with a "skid" mark as though "somebody stepped on it."
The testimony disclosed that the fruit and vegetable display bins are empty in the morning at the opening of the
store. By about 9 A.M. on this day, according to one of the men who worked at these counters, all the vegetable bins had been refilled. The vegetables were brought in from the back room and placed therein. At the time of the accident, he said, the other employee, who worked in this aisle, was taking bananas out of a box and putting them upon a stand. There was nothing on the floor from this operation.
Between opening time and 10 o'clock about 150 to 200 customers had come into the store. Thirty or 40 of them were served on the scale side of the vegetable and fruit aisle; they bought principally apples, pears and bananas. Fifty to 75 of ...