(dissenting). I respectfully dissent. I would affirm the circuit judge’s action in sustaining the defendant’s motion for a directed verdict because the plaintiff has failed to prove any negligence on the part of the defendant.
*367The mere fact a fall occurred on a floor which had water on it is not proof of negligence on the part of the proprietor. Plaintiff is proceeding on the theory of negligence. She must, therefore, offer proof the defendant has failed to comply with his duty of ordinary care which is owed to the plaintiff before any liability exists. In this particular case, it is incumbent upon the plaintiff to prove a dangerous condition existed and that the defendant had actual or constructive notice of the condition. The water on the floor is not traceable to any act of the proprietor of his employees, but was caused by third persons.
I concede the plaintiff should not have to prove notice when the condition is created by the proprietor or his employee because the usual rules of the law of agency are applicable, but this case is strictly governed by the rules of the law of negligence. Kinser v. Rich’s, Inc., 300 F.(2d) 902 (Sixth Circuit).
In the cases of Hill v. Castner-Knott Dry Goods Co., 25 Tenn.App. 230, 166 S.W.(2d) 638, the court held in the absence of proof whether a customer or employee created, the dangerous condition, the jury should not be allowed to speculate. I interpret this case requires a plaintiff to offer proof of actual or constructive notice.
Generally, there is no liability on the account of a ' foreign substance deposited on the floor, when the floor has been properly constructed and free from defects, in the absence of actual or constructive notice. Phillips v. Harvey Co., 196 Tenn. 174, 264 S.W.(2d) 810 (1953); Gargaro v. Kroger Grocery and Baking Co., 22 Tenn.App. 70, 118 S.W.(2d) 561 (1938); Busler v. Cut-Rate Super Market, 47 Tenn.App. 21, 334 S.W.(2d) 738 (1942); Vogue, Inc. v. Cox, 28 Tenn.App. 344, 190 S.W.(2d) 307 (1945); Restatement, Torts, Sec. 343 (1934).
*368The question of notice is one for the jury. When there is a complete absence of proof as to when the dangerous condition came about, there is nothing to submit to the jury and it would be unfair to both parties to permit the jury to speculate or guess when the floor became wet. The proof shows it had been raining most of the day but the rain had ceased approximately one hour prior to the fall. There is no proof the sidewalk and parking lot were not wet. Mrs. Allison, on cross-examination in response to a question whether they were dry, said:
“Well, I wouldn’t say that they was or that they wasn’t, but since it had rained that morning, why you would think, naturally, that they would be probably damp.”
Neither the court or jury could determine from the proof whether the water on the floor was tracked in by the first customer in the morning and permitted to remain all day or caused to be on the floor by a customer immediately preceding Mrs. Allison.
Some may say the fact that it is raining or has been raining should be constructive notice to a proprietor that floors near the entrance will become wet and create a dangerous condition. I would not say a proprietor is guilty of negligence in permitting a small accumulation of water to collect on the floor under weather conditions which existed in this case. It would be impossible to maintain a perfectly dry floor and remain open for business during inclement weather. He has a duty to provide a reasonably safe condition but is not an insurer of the safety of persons. To hold otherwise would, in fact, say the mere presence of water on the floor would be negligence per se. See Curtis v. Traders National Bank, 314 Ky. 765, 237 S.W.(2d) 76; Hill v. Davison-Paxon Co., 80 *369Ga.App, 840, 57 S.E.(2d) 680; Cox v. Goldstein, 255 Ala. 664, 53 So.(2d) 354. Also see Pfeifers of Arkansas v. Rorex, 225 Ark. 840 286 S.W.(2d) 1, 62 A.L.R.(2d) 1.
In a case such as this where a dangerous condition is caused by strangers and where there is no proof that the construction is inherently dangerous, the plaintiff should he required to offer proof of actual or constructive notice of such condition before there is a question for the jury.
The plaintiff’s allegations that the defendant’s failure to put down absorbent mats is a breach of duty, in my opinion, is not sound. Mrs. Allison had been a customer of the bank for the past six months and was familiar with the premises. There is no proof that she relied on any absorbent mats being placed in the building. I would adopt the reasoning of the Supreme Court of Missouri in the case of Schmoll v. National Shirt Shops, 354 Mo. 1164, 193 S.W.(2d) 605.
“Of the evidence that defendant had on other occasions when it was raining, through a number of years, placed a rubber matting on the lobby floor; and had put out the matting after plaintiff had fallen — it was not shown that plaintiff in approaching defendant’s store had known of or relied upon a custom or habit of defendant to cover the floor with a rubber matting when the brass was slippery [the terrazzo floor in question had brass lettering embedded in it]. Since it was not shown that the floor was not reasonably safe, and except in the respect that its unsaf e condition was obvious, we hold the use of the matting on former occasions, when the floor was wet, should not be considered such an admission of a negligently unsafe condition of the floor as to justify the submission of the issue to the jury. To hold *370otherwise would be but to penalize defendant for an extra precaution for the safety or convenience of its patrons.” (Emphasis ours.)
It is quite generally held that there is no liability to a customer who slips because of water, snow, etc., which has been carried in by other people, the floor being properly constructed and not inherently dangerous. Kresge Co. v. Fader, 116 Ohio St. 718, 158 N.E. 174, 58 A.L.R. 132; Bell v. Great Atlantic & Pacific Tea Co., 288 Pa. 160, 135 A. 607; Murray v. Bedell Co., 256 Ill.App. 247; Heidland v. Sears Roebuck & Co., 233 Mo.App. 874, 110 S.W.(2d) 795; Battles v. Wellan, La.App., 195 So. 663; Lander v. Sears, Roebuck & Co., 141 Me. 422, 44 A.(2d) 886. But there are cases to the contrary. Gordon v. McIntosh, Tex.Civ.App., 54 S.W.(2d) 177; Belzer v. Sears, Roebuck & Co., Mo.App., 76 S.W.(2d) 701; Great Atlantic & Pacific Tea Co., v. McLravy, 6 Cir., 71 F.(2d) 396.
I am of the opinion the plaintiff’s proof is insufficient to prove a dangerous condition existed and that the defendant had actual or constructive notice and the circuit judge properly directed a verdict.