Price, Sullivan and Foley. The opinion of the court was delivered by Price, S.j.a.d. Foley, J.A.D. (dissenting).
In a negligence action defendant seeks to reverse judgments in favor of plaintiffs entered in the District Court on a verdict of a jury in the sum of $3,000 for Nora Tua and $500 for her husband Alfred Tua, who sued per quod. The case had been transferred from the Superior Court, Law Division, by appropriate order. The respective judgments represented compensation to Nora Tua for physical injuries sustained and to her husband for consequential damages as the result of a fall suffered by Mrs. Tua when she slipped on the floor of defendant's store while she was a customer therein.
Defendant bases its appeal solely on the ground that the court erred in denying its motion for dismissal of the action at the end of plaintiffs' affirmative case, R.R. 4:42-2(b), and its motion for a judgment of dismissal at the conclusion of the introduction of the evidence. R.R. 4:51-1.
The factual situation disclosed by the record reveals that on August 26, 1957 during business hours, Mrs. Tua, 57 years of age, accompanied by her daughter and her sister, entered defendant's furniture store. Her version of [64 NJSuper Page 213] the factual situation follows: Her primary purpose in going to defendant's store was to purchase a chair. She did so. The three women then returned to plaintiff's automobile, parked near to the store, and the chair was placed in the car. Leaving her companions in the car, Mrs. Tua returned to the store to buy a lamp. She did so and then asked the saleslady, Muriel Israel, one of the store proprietors, who had waited on her in connection with the chair and lamp purchases, to show her such desks as defendant might have for sale. The desks shown were not satisfactory to plaintiff and she and Mrs. Israel walked toward the section of the store where the lamp which plaintiff had purchased had been left. Plaintiff described the actual accident as follows: as Mrs. Israel "was walking right alongside of me" in an aisle lined with furniture, "I stepped on this soft slippery thing that caused me to fall * * *, into something soft and slippery, a waxy substance. I was going to fall backwards and I tried desperately to regain my balance, and Mrs. Israel * * * made a grab for me, and that made me lose my balance, as I split like this here and went over all on this side here, all on my left side, and a complete split." She testified that she was then obliged to remain seated in a chair for about a half hour as her knee, injured in the fall, pained her severely. She testified that, while seated, she looked at the place where she had slipped and fallen and "I saw * * * a yellow waxy substance that looked like wax" on the floor. The waxy substance was "spread in the center. * * * In the center * * * it was a waxy, soft looking, but on the edges and around the side it was dry, because she [Mrs. Israel] had to scrape it in order to get it off the floor. * * *" It was "soft in the center; and hard on the sides. * * * the part that I stepped in was a little bigger than a half a dollar * * *." She further testified that the substance was "crusted hard on the outside, on the edges of it * * *" and "soft" where she "stepped." She added: "* * * [I]t was a
soft, slippery thing in the center. On the outer * * * looked like an egg yolk because it was encrusted into the thing * * *. The lady of the store cleaned it up * * *. She took something from this * * * table * * * and did it with it. She had to scrape it because she took the soft part up with paper, but the other that was around the edges, that was encrusted into there, she had to scrape that."
Plaintiff further testified that she saw wax on the sole of her left shoe. She observed this when she attempted to stand, assisted by Mrs. Israel and her sister who had returned to the store. She said: "[M]y foot started to slide * * *. So then I passed my hand, underneath my shoe, and I seen the greasy yellow substance. And I had that all smeared over my hand, and my sister gave me a handkerchief to clean my hands with." She added that, earlier, Mrs. Israel had given her some paper "to clean my shoe, but I still must have had some left, underneath, because I was still sliding, was going to slide when they helped me up to go to my car."
Further testifying on direct examination, plaintiff said that while she was seated in the chair she saw "a big floor waxer, standing up against the booth, and the reason why it attracted me, because it was a bright red; big floor, commercial waxer, up against the booth of the store."
On cross-examination she said that she had not experienced any other slippery place in the area of the store where she had walked; that the aisle where she walked "had red linoleum tile on it." She further testified that at the time of the accident she wore low-heeled shoes.
The sister of plaintiff, Frances Drache, who had not witnessed plaintiff's fall, testified that, on re-entering the store to ascertain the cause of plaintiff's delayed return to the automobile, she found her seated in a chair and that on inquiry Mrs. Israel stated that Mrs. Tua had "slipped and twisted her knee." Mrs. Drache testified: "I tried to help my sister up and I put a hand under her elbow
and she kept slipping, so I let her down again. * * * I handed it [my handkerchief] to her and she was wiping the bottom of her shoe * * *. [S]he sat up again * * * and she cleaned her hands with it instead * * *. It [the handkerchief] was badly smeared. It was yellow and brownish * * * looked gummy to me." She did not testify to the presence of a waxer nearby.
Plaintiff's daughter, Linda Tua, who said that she temporarily remained in the automobile when Mrs. Drache returned to the store, testified that she then re-entered the store and saw that her mother slipped when she attempted to arise; that she had a "waxy substance on her hand * * * and I saw * * * she was wiping it off her hand * * * it was on the handkerchief."
Following the denial of defendant's motion for dismissal at the end of plaintiffs' case, defendant called Mrs. Israel as its sole witness. Most of the crucial testimony presented by plaintiff, her sister and her daughter was flatly contradicted by Mrs. Israel. She denied that plaintiff had purchased a lamp. She presented her sales book which contained a record of the purchase of the chair but no record of the purchase of a lamp. She testified that plaintiff had been in the store only once that day; had purchased a chair only, then departed and had not re-entered the store. Mrs. Israel denied that she had seen plaintiff's daughter at all but did see Mrs. Drache. She categorically denied that she had seen plaintiff fall. Her story was that, while preceding plaintiff as they were walking toward the front of the store, she heard plaintiff exclaim. She turned and saw her seated in a chair about 10 or 12 feet away. "She was holding her left ankle" and the following conversation ensued:
"* * * I said to her, 'What is the matter?' And she said, 'I fell,' and I said, 'You fell? How? Where?' And she pointed, and she said, 'I fell back there. It is slippery,' and I said, 'Where is it slippery? Show me,' and she said, 'Over there, there it is slippery,' and I said, 'I don't see anything slippery.' I said, 'You may have turned your ankle, and it is no wonder,' and then I started to lecture her on the type of shoe she was wearing for her build
and stature. She had her feet, which were a little on the heavy side, in a tight red pump, with a very thin heel, not a high heel but a very thin heel, and I said to her, 'You should wear the kind of shoes I wear,' and I pointed to my shoes which were oxfords and I said, 'This is the type of shoe for a woman of your build,' and she sat there for a few minutes more and then got up and continued to make the purchase of the chair."
Mrs. Israel further testified that she looked at the section of the floor to which Mrs. Tua pointed and saw nothing on it. She denied that she saw plaintiff on the floor in a "split" or "any other position"; that she did not "grab" her at any time; that Mrs. Tua remained seated in the chair only a few minutes and then arose and "browsed around a little more" without difficulty in walking, selected the chair she desired, the bill was prepared, plaintiff paid it and left. At no time did she see Mrs. Tua wipe anything from the bottom of her shoe and she denied that there was any conversation with Mrs. Drache about wiping plaintiff's shoe. Mrs. Israel further denied that she had given plaintiff any paper to clean her shoe. A "wholesale furniture representative" who happened to be in the store, Mrs. Israel said, carried the chair to plaintiff's automobile "and tied it down for her." She added that Mrs. ...