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July 12, 1958

Sadie A. PRESTON, Plaintiff,
SAFEWAY STORES, Inc., Defendant

The opinion of the court was delivered by: HOLTZOFF

This is a motion by the defendant for judgment notwithstanding the verdict or in the alternative for a new trial on the ground that the amount of damages awarded by the jury is excessive.

The action is brought by a customer of a grocery store against its owner to recover damages for personal injuries resulting from a fall due to slipping on a tiny piece of onion lying on the store floor. After a trial on the merits, the jury found a verdict in favor of the plaintiff in the sum of $ 5,000. At the close of the plaintiff's case, counsel for the defendant moved for a directed verdict on the ground that no negligence on its part had been shown. The motion was denied. It was renewed at the close of the entire case with the same result. The point is now brought on for reconsideration by the motion for judgment notwithstanding the verdict.

 The principles of law governing the duty of a storekeeper or of the operator of any other similar establishment, such as a restaurant, in respect to the security of members of the public who are impliedly invited to enter and patronize the establishment, are well settled. The shopkeeper is not an insurer or guarantor of their safety. Nevertheless, since he impliedly invites them to enter for the purpose of transacting business, he is under a duty to exercise reasonable care for their protection. Their status is that of invitees. Failure to exercise reasonable care constitutes negligence and if such negligence is the proximate cause of an injury to a patron within the establishment, its owner or operator is liable for damages. The burden of proving negligence is necessarily on the plaintiff. F. W. Woolworth Co. v. Williams, 59 App.D.C. 347, 41 F.2d 970; Brodsky v. Safeway Stores, 80 U.S.App.D.C. 301, 152 F.2d 677; Restatement, Torts, § 343; Prosser on Torts, Sec. 78.

 Specifically, it is the duty of the storekeeper to use reasonable care to keep the aisles of the store free from foreign substances on which persons might slip and fall. If one of his employees causes such matter to be dropped or left on the floor and a customer is thereby injured, the storekeeper is liable. Likewise if it is shown to have been on the floor a sufficient length of time to constitute constructive notice of its presence, the storekeeper is liable for injuries caused thereby, since he is under a duty to remove such material within a reasonable time after it finds its way to the floor, irrespective of its source. On the other hand, the storekeeper is not liable if a piece of debris is dropped by some third person and has not remained long enough to charge him with notice.

 In the case at bar, the theory of the plaintiff was that the shred of onion on which she slipped was on the floor as a result of negligence of one of the defendant's employees in sweeping the aisle. In other words, it is the plaintiff's contention that this case comes within the first of the foregoing categories, namely, that the debris was dropped by one of the employees of the defendant or overlooked by him when he cleared the floor.

 The evidence on this point is not controverted. An employee of the defendant, called as a witness on behalf of the plaintiff, testified that it was his duty to clean the portion of the floor where the accident occurred; that he swept it five or ten minutes before the plaintiff fell; and that among the sweepings were about two handsfull of vegetable leaves, which included pieces of lettuce and onion tops. There was also some testimony to the effect that during the short interval elapsing between the time when the employee swept the aisle, and the moment when the accident occurred, there were two or three other customers in that part of the establishment.

 It is argued in behalf of the defendant that since the evidence was capable of either one of two inferences, it cannot be deemed sufficient to prove either and that, therefore, a verdict in its favor should have been directed. There is indeed some basis for this position. One of the earliest and clearest statements of this principle is found in an opinion of Judge Taft, as a Circuit Judge, in Ewing v. Goode, 78 F. 442, 444, which reads as follows:

 'When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither.'

 The Supreme Court approved this principle in Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 74 L. Ed. 720, quoting this statement of Judge Taft. In Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339, 53 S. Ct. 391, 393, 77 L. Ed. 819, the Court said:

 'We, therefore, have a case belonging to that class of cases where proven facts give equal support to each of two inconsistent inferences; in which event, neither of them being established, judgment, as a matter of law, must go against the party upon whom rests the necessity of sustaining one of these inferences as against the other, before he is entitled to recover.'

 This doctrine was adopted and applied by the Court of Appeals for this Circuit. Kelly Furniture Co. v. Washington Ry. & Electric Co., 64 App.D.C. 215, 217, 76 F.2d 985; Capital Transit Co. v. Gamble, 82 U.S.App.D.C. 57, 58, 160 F.2d 283.

 Were this the state of the law at present, this Court would have been inclined to direct a verdict in favor of the defendant. This principle, however, no longer prevails in the Federal courts. In Lavender v. Kurn, 327 U.S. 645, 653, 66 S. Ct. 740, 90 L. Ed. 916, involving an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 brought to recover damages for the wrongful death of a railway employee while in the performance of his duties, the evidence was capable of either of two inferences. The deceased had been struck on the back of his head causing a fractured skull from which he died. There were no eye witnesses to the fatal blow. The circumstantial evidence tended to show that he might have been struck by a train, or that he might have been murdered. At the trial there was a verdict for the plaintiff. On appeal the Supreme Court of Missouri reversed the judgment holding that there was no substantial evidence of negligence to justify the submission of the case to the jury. The Supreme Court of the United States reversed the judgment of the Supreme Court of Missouri, 189 S.W.2d 253, and remanded the case. It held, in effect, that there was a question for the jury to determine, which of the two inferences should be drawn from the evidence. in its discussion of this subject the Court stated (327 U.S. at page 653, 66 S. Ct. at page 744):

 'It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the ...

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