McClurken v. Ralph's Grocery Co.

STEPHENS, J.

The plaintiff (respondent here) testified at the trial that he was shopping in defendant’s grocery-store and while following a clerk who was carrying a sack of potatoes through the store “stepped on something very slick and slippery and slipped and fell violently to the floor.” He also testified that he saw scraps of vegetables on the floor just where and as he fell and that the vegetable-stand was about ten feet from where he fell. A motion for nonsuit was made and granted and thereafter a new trial was granted. We are here considering the appeal upon the latter act.

[530]

The motion for nonsuit was made upon “the ground that there had been no showing made by the plaintiff of actionable negligence on the part of defendant”. The motion for a new trial is sought to be sustained alone upon the contention that the granting of the nonsuit was against law. Applied to the facts of the case respondent (plaintiff below) thinks the plaintiff’s testimony amounted to some substantial evidence of the defendant’s negligence and that the question of negligence should have been submitted to the jury. The case of

Williamson

v.

Hardy,

47 Cal. App. 377 [190 Pac. 646, 647], presents the same point upon the court’s refusal to direct a verdict. The facts of the two eases have striking similarities. We quote from the opinion as follows. : “Taking the plaintiff’s positive testimony that she slipped and fell upon the floor of the defendant’s market through having stepped upon a piece of 'oiled paper made slippery by the adhesion to it- of scraps of fresh meat, it was a question for the jury to determine whether or not the defendant was negligent in permitting such a substance to be lying upon the floor of his market where customers were wont and were required to walk while making their purchases therein.” A quotation from

Gullick

v.

Interstate Drilling Co.,

111 Cal. App. 263 [295 Pac. 549, 551], is also pertinent: “The plaintiff was seventy-nine years of age and at times somewhat confused in his testimony, but when we apply the rule which should be made use of upon a motion for a nonsuit it becomes apparent that the judgment should be reversed. The rule alluded to is that ‘where evidence is fairly susceptible of two constructions, or if one of several inferences may reasonably be made, the court must take the view' most favorable to the plaintiffs’.