(dissenting) :
I am concerned with the sufficiency of the evidence to support a verdict for the respondent. I conclude that the evidence was insufficient and that a directed verdict should •have been entered for the appellant.
'' It is conceded that the convex mirror had been in place for seven years and that no prior injuries had occurred as a result of this mirror.
The respondent sought to create a basis for an inference that the mirror was defective in that it was not constructed with safety devices, as are mirrors at the present time. -Be that as it may, there is no testimony that the appellant had notice of this alleged defect or should reasonably have been aware of it.
A business proprietor is under a duty to use due care to keep in a reasonably safe condition the premises where invitees may be expected to come and go. If there is a dangerous condition, the proprietor must safeguard those who lawfully come upon the premises by warning them of the condition and the risks involved. The basis of liability is his superior knowledge over that of business invitees of the dangerous condition. On the other hand, the law does not make the proprietor an absolute insurer against such happenings. It cannot guard against every contingency, and the individual invitee bears some of the risks of the hazards of life inside a business establishment as well as out. The question is, what is a fair division of those risks under the particular circumstances; the common experience and judgment of the community serve as a touchstone for its answer.
*406There is nothing unique in mirrors in business establishments. Substantial numbers of children and members of the public had passed this particular mirror over the course of seven years, without reported incident.1 Yet, the majority opinion would make this and every mirror a dangerous object.
This Court has consistently held that a business is not an insurer of the safety of its patrons,2 and that liability to a business invitee is predicated upon negligence. Negligence is not presumed and the happening of an accident does not establish negligence. The burden is upon the plaintiff to establish negligence and proximate cause. Even viewing the evidence in the light most favorable to respondent and giving him the benefit of all inferences which might reasonably be drawn therefrom, I do not believe that the negligence of appellant was established or that negligence, if present, was the proximate cause of respondent’s injuries. Mullen v. Winn-Dixie Stores, Inc., 252 F. (2d) 232 (4th Cir. 1958); Wimberly v. Winn-Dixie Greenville, Inc., 252 S. C. 117, 165 S. E. (2d) 627 (1969); 61 A. L. R. (2d) 129; Prosser on Torts 3d Ed. at 216.
A verdict may not be predicated upon proof of the occurrence and the existence of the hazardous condition which caused it. This is true though the nature of the condition suggests that it had existed for some time. Thus testimony that the respondent fainted and fell into the mirror is insufficient to support a finding that the appellant knew or should have known of the condition of the mirror. Suppose that the respondent’s head had struck the edge of a door or a desk in the doctor’s office, could it be held that the sharp edge of the door or desk was a dangerous condition about which the respondent should have been forewarned? And if so, what effect would a warning have upon one who faints ?
*407In the instant case, the glass did not break and cut the respondent of its own accord; it was caused by the respondent fainting, presumably as a result of a shot administered by the physician who the jury found to be without fault. There is no evidence that the appellant had any knowledge of any alleged defect or weakness in the mirror. There is no proof that the appellant should have anticipated that its tenants would give a young child a shot and, without retaining him for a period of time to insure his stability, send him out in the vicinity of the mirror where he might fall and strike his head.
I think the respondent failed to prove that the appellant knew, or should have known, of the alleged dangerous condition of the mirror in time to have removed it or warned of it. Accordingly, I believe appellant was entitled to a directed verdict and would reverse with direction to vacate the judgment and dismiss the complaint.
Reversed and remanded.
It should be noted that the verdict of the jury was against the owner of the building not the physician.
Baker v. Clark, 233 S. C. 20, 103 S. E. (2d) 395 (1958); Wimberly v. Winn-Dixie Greenville, Inc., 252 S. C. 117, 165 S. E. (2d) 627 (1969).