VICE
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
Docket No. 16784.
Michigan Court of Appeals.
Decided May 1, 1974.*141 Gage, Brukoff, Dubin & Siudara (by Richard A. Lenter), for plaintiff.
Vandeveer, Garzia, Tonkin, Kerr & Heaphy, P.C. (by Michael M. Hathaway), for defendant.
Before: BASHARA, P.J., and DANHOF and R.L. SMITH,[*] JJ.
DANHOF, J.
In this negligence action, plaintiffs appeal from the trial court's entry, in favor of defendant, of judgment notwithstanding the jury's verdict, GCR 1963, 515.2.
Judgment notwithstanding the verdict on defendant's motion was appropriate only if the facts taken inferentially in favor of plaintiffs preclude judgment for plaintiffs as a matter of law. Huhtala v Anderson, 15 Mich App 693; 167 NW2d 352 (1969). Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965).
The evidence viewed in the light most favorable to plaintiffs was as follows: Frost and ice had been allowed to accumulate on two packages of frozen squash in defendant's store. The two packages, which were stuck together, were held by defendant's employee for Mrs. Vice's inspection over the aisle where she was standing. While the packages were thus held, a conversation ensued which lasted from three to five minutes. Mrs. Vice saw the ice melting as defendant's employee talked to her. She did not see moisture drop to the floor. As the conversation ended and Mrs. Vice turned to *142 leave, her foot slipped from under her. As a result of this fall, Mrs. Vice suffered a fractured hip. At the time of her injury, she was wearing shoes with nonslip soles. There was no evidence that she twisted her ankle. She testified that she did not trip. She was conscious of events prior to, during, and after her fall therefore she did not faint. Because she was in extreme pain, Mrs. Vice did not inspect the floor. Although defendant's employees did inspect the aisleway, all parties are agreed that Mrs. Vice was dragged from the place where she fell to a room where she remained until an ambulance was called. Moisture, therefore, could have been wiped away by her coat, on top of which she fell. Defendant's employees did not inspect her shoes and coat for moisture. One of defendant's employees testified that if frost were allowed to accumulate on packages on frozen food, a dangerous condition in the aisleways could result when the packages were placed in shopping carts. Thus, efforts were periodically made to keep the frozen food packages free of frost.
Included in the trial court's instructions to the jury were Michigan Standard Jury Instructions 1.03 (on circumstantial evidence of negligence) and 1.04 (on jurors taking into account their ordinary experience and observations in the affairs of life). The jury found defendant negligent and awarded damages in the sum of $10,000.
The jury's verdict reflects a finding that Mrs. Vice's fall was caused by moisture in the aisle and that the source of the moisture was the melting frost. Given the evidence, this is more than mere conjecture. That there may have been other plausible theories of cause and effect does not justify setting aside the determination of the triers of fact. Ruemenapp v National Food Stores, Inc, 385 Mich 648; 189 NW2d 330 (1971).
Galloway v Sears, Roebuck & Co, 27 Mich App *143 348; 183 NW2d 354 (1970), is distinguishable from the case at bar, since causation of the slip and fall was not there an issue. Galloway turned on the absence of proofs by plaintiff that defendant knew or should have known of an admittedly unsafe condition. See also Serinto v Borman Food Stores, 380 Mich 637; 158 NW2d 485 (1968). In the instant case, the evidence supports the jury's finding of active negligence on the part of defendant's employee.
The judgment of the trial court is reversed, with instructions to reinstate the jury's verdict. Costs to plaintiffs.
R.L. SMITH, J., concurred.
BASHARA, P.J. (dissenting).
I must respectfully dissent from the majority holding. It is my opinion that the trial judge properly granted judgment notwithstanding the verdict.
The sole evidentiary fact bearing on the possibility of defendant's negligence was that there was frost on some squash being shown to plaintiff Maudena Vice in defendant's store. As Mrs. Vice turned to leave the area she slipped and fell incurring injuries. An examination of the record reveals no testimony whatsoever to show any substance upon the floor to cause plaintiff to slip. Neither plaintiffs' nor defendant's witnesses produced any fact adducing a dangerous condition which defendant knew of or should have known of.
It is true that an inference can be raised that the defendant had actual or constructive knowledge of a dangerous condition, but there must be some evidence presented to the jury to support such an inference. Galloway v Sears, Roebuck & Co, 27 Mich App 348; 183 NW2d 354 (1970). Here no such evidence was presented.
I, therefore, vote to affirm.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.