On Rehearing
O’CONNELL, J.This cause was first heard in department. Our former opinion affirmed the lower court’s action in entering a judgment n.o.v. for the defendant. A petition for rehearing was granted and the cause was heard by the court sitting en banc. Upon a reconsideration of the matter we have concluded that our former opinion was in error and that it must be withdrawn. The basis for our present conclusion is found in the dissenting opinion filed in the original case. Additional support for the position taken in that opinion may be found in Eitel v. Times, Inc., 221 Or 585, 352 P2d 485 (1960).
There remains the question raised by defendant’s alternative motion for a new trial. That motion was based upon the alleged error of the court in refusing to withdraw from the consideration of the jury various specifications of negligence alleged in plaintiff’s complaint, and in permitting the jury to consider plaintiff’s claim for loss of earnings. The motion was granted without any indication as to which of the grounds support the court’s ruling.
Upon appeal, the particular grounds urged as a basis for sustaining the court’s ruling is the alleged *318error in refusing to withdraw from the jury the following specifications of negligence in subparagraphs 1 and 2 of paragraph IV of plaintiff’s complaint. That paragraph, together with paragraphs III and V, reads as follows:
“HI
“That on or about the 2nd day of August, 1956, the plaintiff herein, at the specific invitation of the defendant, drove onto said parking lot and parked her car therein and entered said grocery and variety store of defendant situated at 3038 N.E. Union Avenue, Portland, Multnomah County, Oregon, and generally known and referred to as store No. 9; that upon entering said store, plaintiff was caused to slip on certain grease and oil on the floor thereof and to fall heavily, causing the injuries more specifically set forth hereinafter.
“IV
“That at the time and place aforesaid, the defendant was careless and negligent in the following particulars, to-wit:
“1. That defendant permitted automobiles to park in such close proximity to the front entrance to said grocery and variety store that certain oils and greases dripping from said automobiles accumulated on the parking lot and more specifically in the area in close proximity to the front entrance to said store.
“2. That defendant permitted the accumulations of grease and oil to remain on said parking area and the sidewalk in front of the entrance to said store so that persons coming into the store through the said front entrance were caused to pick up said grease and oil upon their shoes and bring the said grease and oil into and upon the floor of said grocery and variety store.
“3. That defendant permitted the said floor at the front entrance of said store to become covered with grease and oil from the parking lot, the pres*319ence of which, grease and oil on said floor they knew or in the exercise of reasonable care could and should have known.
“4. That the defendant faded and neglected to remove the said grease and oil from the parking lot and from the floor of the said store at the front entrance thereto in order to prevent persons entering said store from slipping and falling.
“5. That the defendant failed to warn its customers and more particularly the plaintiff, in making use of said parking lot and the front entrance to said store, of the accumulations of grease and oil upon the said floor of said store at the entrance thereto.
“V
“That the acts and omissions of defendant, as hereinabove set forth, and each of them, operating separately and concurrently, were and are the direct and proximate cause of the plaintiff’s fall at the said time and place and of the injuries received by her as a result thereof.”
The question is whether the court’s instruction permitting the jury to find for the plaintiff, if defendant was negligent “in any one or more of the particulars set forth in plaintiff’s complaint,” was prejudicial to the defendant. We are of the opinion that the erroneous instruction was ground for a new trial.
It is plaintiff’s position that it would not. be reasonable to consider the first so-called specification of negligence independently, but that it must be read together with the second specification. It is not difficult for us to get the meaning intended to be conveyed by the separate allegations of fault, but the important question here is whether the jury might be misled. The instruction invited a consideration of each of the enumerated items of fault as a distinct basis for liabil*320ity. It is possible that the jury could have interpreted this to mean that defendant would be liable in this case merely by proving that it permitted automobiles to park in front of the defendant’s store and as a consequence oil and grease accumulated in that area. Since this could have confused the jury with respect to defendant’s duty, we are of the opinion that a new trial must be granted.
In our former opinion it was said that plaintiff’s failure to look at the floor upon entering the store constituted contributory negligence. Proof that plaintiff failed to look at the floor does not establish that she was negligent as a matter of law. "Whether plaintiff’s failure to examine the floor constituted contributory negligence was a matter for the jury. Miller v. Safeway Stores, Incorporated, 219 Or 139, 346 P2d 647 (1959).
The judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.
McAllister, C. J., dissents.