(dissenting).
I regret that I am unable to concur in the conclusion reached by my associates. In my judgment it ignores, or Mis’ to give due weight .to, the primary, essence of negligence, which is the ab.sence ©treasonable foresight'for harm. A person is not bound to foresee: and provide against casualties which are not reasonably to. be expected. The actual result of an act, or omission, is not controlling in determining whéther or not it was negligent, nor is it to be judged-by what may appear after an injury has occurred.
The foregoing principles taken from the text of 45 Corpus Juris, p. 635 et seq. and cases cited, are universally accepted. The learned writer of the majority opinión -in this case has stated them admirably in Fort Smith Gas Co. v. Cloud (C. C. A.) 75 F.(2d) 413, heard and decided at this same term, as follows: “To constitute actionable negligence the injury must have been the natural and probable consequence of the alleged negligent act. The consequence of the negligent act must be within the range of probability as viewed by the ordinary man, and consequences which are merely possible cannot be regarded as either probable or natural. * * * One is bound to anticipate only the reasonable and natural consequences of his conduct.”
Unfortunately, these pertinent rules are not applied in the instant case. The place where the accident occurred was regularly cleaned every morning, so carefully that appellant’s employees had been complimented by the state inspector for their conduct in this respect. There was present, and un-contradicted, affirmative evidence of reasonable inspection and supervision. Evidence of the length of time this piece of twine had lain upon the floor of the aisle is entirely lacking, so that no negligence can be predicated upon the mere failure to correct a condition of which appellant had actual or constructive notice. A specimen of this twine was exhibited to this court at the hearing. It was not a rope, but a hempen string, commonly known as binder twine. It was in no sense a dangerous article, one conveying a warning of danger, and to my mind,, from this record, no one seeing it there would have reasonably anticipated probable injury from its presence on that floor. But no one did see it.
The accident occurred at noon, 12:15 to be exact. This string found its way to the floor presumably at the hands of an employee engaged in selling or exhibiting a tree during that forenoon; and, in order to charge appellant with actionable negligence, it is necessary to hold that this piece of twine, if .allowed to remain upon the floor, was in se such a menace to safety as to charge appellant with reasonable cause to anticipate threatened danger as natural and probable. To me this does not seem to be a case upon which, before the fact, reasonable minds should differ. The mere finding of a jury, of course, furnishes no basis for such a conclusion. The affirmance of this judgment upon such a slender basis, will, I fear, furnish a dangerous precedent to the view that a merchant is in practical effect an insurer against accidents upon his premises. For this reason I am constrained to dissent.