MISCALLY v. COLONIAL STORES INC

Sarah Miscally sued Colonial Stores Inc. for damages for an injury which she had received from a fall due to the alleged negligence of the defendant. At the conclusion of the plaintiff's testimony a nonsuit was granted. During the trial certain evidence was excluded over objection of the defendant. The case is here on a direct bill of exceptions, alleging error (a) in the exclusion of the testimony, and (b) in the judgment of nonsuit. Aside from evidence to sustain the extent of the injury, the evidence as to how such injury occurred is substantially as follows: "I did not see anything on the floor that attracted my attention particularly to where I fell. I always took reasonable care in looking at the floor, and looking ahead to see that everything was clear, and I didn't see this or distinguish it from the condition of the floor. I stepped on something, and I saw afterwards what I stepped on, because I carried a little portion of it with me. I went on to the line of where my foot skidded. As to whether or not it was on my shoe, there was a place on the heel of my shoe when I got home, but I had walked across a parking lot, so there was not much on my shoe. . . I said, `Mr. Lassiter, this is important, you will have to come;' so he excused himself to the people and came over to me, and I told Mr. Lassiter I had slipped down, and to see what I had slipped on. He picked it up and I said, `It looks like a lettuce leaf.' He said, `I can't tell whether it is a lettuce leaf or a cabbage leaf.' . . It was more than a mashed leaf; it was mashed and it was very dirty. You could not tell whether it was green or what color it was. In my opinion it looked like it was dirty and that it had been a white leaf. I just can't tell exactly whether it was round or square. I don't think I could say it was round or square. It was kind of a broken leaf. It was about two and one-half inches across. This Big Star is one of the self-serving stores where you go in and wait on yourself. They do have clerks there to assist you in various ways. Customers in the produce department where vegetables are kept can wait on themselves in certain things, and in certain things they can't. Things that have to be bagged, you have to wait on somebody to deal with you. When you select cabbage heads you go to the produce department and select the merchandise. As to who bags them, with a head of cabbage or bunch of carrots or anything like that, you give them to the clerk. When you are buying cabbage you don't always let the clerk pick it out, but you sometimes pick it out when it is what you want. Where I slipped is right adjacent to the produce, where they were selling fresh vegetables. . . My left foot slid quite some distance when I slipped. As to which way it slipped, in the excitement I don't think I could tell you that. I could not tell you exactly, but it slipped a foot or two. . . I imagine that my foot slipped more than a foot or two. It seemed to me that I was going all over the store, but I don't know just how far it was. I know I felt those things against my foot when I first slipped and I tried to get up and leaned on this side, and when I tried to lean on that arm it was way under me and I went down on this knee." The evidence further reveals that the plaintiff was a customer of defendant, who conducted a large retail grocery store. That before the vegetables were displayed they were prepared in another room where decayed and discolored leaves were removed.

GARDNER, J.

During the progress of the trial the plaintiff offered to testify: "It was very dirty, and had the appearance of having been walked over, under foot." Counsel for the defendant objected to this testimony as calling for an opinion of the witness. The judge ruled: "She can describe its looks, but not give an opinion about it. I will exclude her opinion. Let her describe what it was. She can give a description of what it was." Thereafter the witness, as to this phase, testified: "It was more than a mashed leaf. It was mashed and it was very dirty. You could not tell whether it was green or what color it was." As we view the case, we can with propriety concede but need not decide whether the ruling was error. Such would make no material difference in the law which would apply under the facts of this case. Let us then consider the excluded testimony as a part of the evidence. There is no evidence to charge the defendant with actual knowledge of the presence of the vegetable leaf upon the floor. Therefore we must look to see whether the evidence was sufficient to charge the defendant with constructive knowledge. There is no question but what constructive knowledge may be based on inferences drawn from the evidence, but the question in this case is whether the inferences which the law requires to charge the defendant with actionable negligence may be legally established by the evidence in this case. The measure to be applied is that of circumstantial evidence. The rule is as follows: in civil cases dependent solely on circumstantial evidence, before a verdict is authorized for the plaintiff the testimony must be such as to reasonably establish the theory relied on and to preponderate to that theory rather than to any other reasonable hypothesis. In this case the inference must be based solely on the location and condition of the leaf itself, and on its appearance of having been walked over, under foot. This court dealt with a very similar situation in Ellis v. Southern Grocery Stores Inc., 46 Ga. App. 254 (4) ( 167 S.E. 324), as follows: "If, on the other hand, the ordinance should be construed as imposing upon the property owner a legal liability in favor of third persons of the same kind and character as that which the law imposes upon the city, as set forth in paragraph 1 of this syllabus, the defendant property owner would not be liable, since there is no allegation or proof that the defendant was responsible for or had actual knowledge of the presence of the cantaloupe rind; and while the evidence indicates that it was out on the sidewalk immediately in front of defendant's store, and had, in the opinion of the plaintiff, from its rotten condition and gray, sidewalk color, `been exposed all night,' there is nothing whatever tending to indicate where it had been exposed during the night, or how long it had remained where it lay at the moment the accident occurred. The court did not err in granting a nonsuit." Again, in Cook v. Kroger Baking Grocery Co., 65 Ga. App. 141, 142 ( 15 S.E.2d 531), this court dealt with a kindred situation, and said: "The innocence of the person injured does not necessarily establish the negligence of the defendant. The defendant can not be liable unless he owed to the person injured a duty which he neglected. The defendant is not an insurer. Here no active negligence, no structural defects, and no actual knowledge by the defendant that the carrot top was on the floor of the defendant's grocery store is alleged. The mere allegation `petitioner says that he is informed and believes that the slick place on which his said wife slipped and fell was caused by a piece of carrot or carrot top, which had been dropped on the floor and crushed underfoot by customers coming up to said counter, and causing the floor to be slippery,' and the further allegation that `in the exercise of ordinary care the said company should have had agents or servants to watch the floor in front of said counter and clean the same up in order to prevent it from becoming slippery or slick places being on the floor, and thus prevent customers from slipping on said floor and injuring themselves,' do not show that the carrot or carrot top had been on the floor a sufficient length of time (in fact no time was specified) to show that the defendant knew or ought to have known that the carrot or carrot top was on its floor, that is, that it had constructive knowledge thereof. No inference of constructive knowledge can be drawn from the length of time the carrot top was there, for no specific length of time is alleged. Nor are any other facts alleged that are sufficient to show that the defendant had any constructive knowledge that the carrot or carrot top was there."

Very recently, in Brown v. S. H. Kress Co., 66 Ga. App. 242 ( 17 S.E.2d 758), this court, in dealing with a state of facts which we think reflects the principles involved in the instant case, held: "In the present case, in which suit was brought to recover damages for injuries sustained by the plaintiff when she slipped and fell from stepping on a banana peeling on the defendant's stairway in its store, the evidence failed to show that the presence of the banana peeling was caused by the defendant or its agents or servants, or that it had been on the stairway a sufficient length of time to charge the defendant with constructive notice of its presence. Accordingly, the court did not err in awarding a nonsuit. Castleberry v. Fox, 29 Ga. App. 35 ( 113 S.E. 110); Ellis v. Southern Grocery Stores Inc. [supra]; Cook v. Kroger Baking Grocery Co. [supra]." In the Brown case, this court quoted approvingly the cases of Ellis and Cook, supra. Other jurisdictions are divided as to whether a state of facts such as we have before us constitutes a question of negligence and diligence particularly for the jury to determine rather than a question of law for the court to decide. However, the decisions of this court as above quoted preclude the right of the plaintiff to recover under the facts of the instant case. The plaintiff sought to prove her case solely by circumstantial evidence. The evidence does not measure up to the rule announced by this court in Foster v. Jones, 64 Ga. App. 66 ( 12 S.E.2d 141). Any customer could have dropped the leaf a few seconds or minutes before the plaintiff slipped on it; and the leaf could have "been walked over, under foot," by some other customer or customers, a few minutes before plaintiff fell. The evidence does not distinguish the leaf as being decayed or discolored. "You could not tell whether it was green or what color it was." It could have been dirty from having been "walked over, under foot" by plaintiff or some one else shortly before plaintiff slipped. We think this evidence was insufficient to establish the fact that the leaf had been on the floor for a length of time sufficient to apprise the defendant of its presence and to raise a duty on its part to remove it.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.