ON REHEARING. The statement of questions involved included the claim that under plaintiff's proofs no jury question was presented, and the brief for defendant argues the point of whether a verdict should have been directed for defendant, as presented by question number one, reading:
"Is a jury question raised as to defendant storekeeper's liability for negligence, upon the mere showing that while plaintiff was walking in an aisle of the store, she slipped and fell near the end of a lunch counter at which they sell barbecue and hot dog sandwiches, discovering after she had fallen that there was on her foot, a piece of fat meat sticking out of the side of her foot, there being no showing that the meat caused her to slip?"
This sufficiently presented the question of whether the court was in error in refusing to direct a verdict as requested.
At the close of plaintiff's proofs defendant moved for a directed verdict on the ground that no actionable negligence had been shown.
Upon rehearing we are of the opinion that the court was in error in denying the motion.
At that time the evidence most favorable to plaintiff on the question of defendant's negligence was that, on some previous occasions, greasy paper napkins were observed upon the floor, but how long they were left there was not disclosed. The testimony that on one occasion a bone was on the floor, and on the day of the accident the daughter of the witness dropped a piece of "hot dog" on the floor, was stricken out by the court, and no review of the ruling sought by plaintiff.
In the former majority opinion it was stated:
"From testimony that pieces of meat often fell on the floor of the aisle, and that greasy napkins *Page 704 were often dropped in the aisle, it is a fair inference that the meat upon which plaintiff slipped came from the lunch counter; and that, because of the fact that such greasy food and greasy napkins were often on the floor, defendant was negligent in not maintaining the aisle in a reasonably safe condition for customers of the store and especially plaintiff. Under the testimony, such legitimate inferences could be drawn from the facts, by a jury."
This statement employs consideration of stricken out testimony as a premise from which to draw an inference of negligence on the part of defendant causing the accident to the plaintiff. An inference of negligence in the particular claimed to have caused injury to plaintiff cannot be drawn from the fact that on other occasions, and not on the occasion in suit, greasy napkins were seen upon the floor, without further evidence that they remained there by reason of the negligence of defendant in his failure to exercise reasonable care and supervision over the premises. To do so would make defendant an insurer regardless of care exercised.
Plaintiff, in order to recover damages, had to show that she was injured by reason of the failure of the defendant in the instance at bar to maintain reasonable supervision relative to keeping the floor clear of particles of food or other substances likely to cause customers to slip thereon. This plaintiff did not establish, and the difficulty in doing so should not lead this court to make bad law.
At the close of plaintiff's proofs defendant was in point of fact and law entitled to a directed verdict as requested.
The judgment is reversed without a new trial, and with costs to defendant.
BUSHNELL, C.J., and POTTER and NORTH, JJ., concurred with WIEST, J. *Page 705