(dissenting).
I dissent on the basis of the following facts reasonably to be inferred from the evidence appearing in the record:
(1) At the time the mat was installed, shoes of the type worn by plaintiff and equipped with heels 2Vz inches in height and Vz inch in diameter were in common use by women who had occasion to use the entrance-ways of the defendant’s business premises for a business purpose.
(2) Defendant knew this to be the case at that time.
(3) The interstices of the mat ordered and installed by defendant measured Vz inch x % inch in diameter and s/a inch in depth.
(4) Thirty thousand people daily used the entranceways to defendant’s building, all of which were covered by mats of the type here involved. At least one-half of them were women. With shoes of the type here involved in common use by so many, there was a likelihood that some one of them would on some occasion so step as to place her heel directly over one of the interstices. While we do not know the mathematical probability of such an occurrence, the record does tell us that two other women among the necessarily limited number known to plaintiff, had this experience.
(5) If the heel of a shoe Vz inch in diameter is placed on an opening larger than it is and weight is then applied to the heel, it will penetrate the hole and (the depth of the opening being s/s of an inch) become wedged in it.
(6) A woman whose heel becomes wedged in a mat is likely to fall and hurt herself.
(7) The harm to be apprehended could have been avoided by the use of a mat as suitable as this one for the purposes intended by the owner of the building with holes Vs inch in diameter. Had this been done, the hazard could have been eliminated without excessively burdensome expense.
Upon these facts, a holding that there can be no liability here is inconsistent, in my opinion, with prior decisions of this court (Soper v. Erickson, 172 Minn. 377, 215 N. W. 865; Hastings v. F. W. Woolworth Co. Inc. 189 Minn. 523, 250 N. W. 362; Sumner v. City of Northfield, *4196 Minn. 107, 104 N. W. 686; Cogswell v. U.S.S. Yorktown Post 178, 274 Minn. 154, 143 N. W. [2d] 45); a subsisting determination made by the California Supreme Court on almost identical facts (Blumberg v. M. & T. Inc. 34 Cal. [2d] 226, 209 P. [2d] 1); a decision of a Federal district court in Pennsylvania from which no appeal was taken (Ramsey, v. Mellon Nat. Bank & Trust Co. [W. D. Pa.] 231 F. Supp. 1) involving the same situation as that here presented; and a most recent decision of the Supreme Court of Illinois (Tolman v. Wieboldt Stores, Inc. 38 Ill. [2d] 519, 233 N. E. [2d] 33) which stands for the proposition that the owner of business premises who invites women there for the purpose of transacting business must anticipate that they will be wearing high-heeled shoes of a type customarily used by ladies.
While those who wear high-heeled shoes must use reasonable care for their own safety, the hazard involved here was sufficiently obscured and the attention of the plaintiff sufficiently distracted to permit the jury to excuse her failure to make the minute examination that would have been required to demonstrate to her that the holes in the mat were slightly larger than the heel of the shoes she was wearing.
Considering the fact that the building here involved is located in the heart of a modem metropolitan retail shopping and business center, the opinion of the majority gives to the occupier of the business premises involved a greater degree of immunity from liability for injury than, in my opinion, it would have asked for itself before the accident occurred. The reasonableness of this statement can be tested by trying to visualize the owners of the Northwestern National Bank of Minneapolis posting a sign in their entranceway reading “Ladies with High-heeled Shoes: Keep Out.” If exception be taken to the bluntness of this limitation upon the public’s invitation, then try to imagine such a sign reading: “Ladies with High-heeled Shoes: Use This Entranceway at Your Own Risk.” I find it impossible to envision such a sign in place for this reason: The economic worth of the business premises involved is enhanced if women wearing shoes with high heels, or low heels, or no heels at all consider themselves equally welcome to make use of the facilities available there without fear of injury.
Or to put the concept to another test: Is it likely that those who de*42termine the management policies of this building would have permitted the initial use or the continued presence of these mats had they in fact visualized the occurrence of an accident of the type here involved? I doubt it seriously. It is no answer to this proposition to say that negligence is not to be determined on the basis of hindsight, at least in this case. In my judgment, reasonably careful consideration of the hazards involved makes the accident which in fact occurred clearly foreseeable without the aid of actual experience, once the proposition that a heel Vz inch in diameter will become wedged in a hole slightly larger than that and % of an inch deep is accepted.
Where respected courts from other jurisdictions have affirmed findings of negligence in almost identical situations and we ourselves are not in substantial accord, we should be slow to declare without the support of countervailing authority that reasonable minds should all concur in a finding of nonliability. As stated in Lindgren v. Voge, 260 Minn. 262, 269, 109 N. W. (2d) 754, 759, 88 A. L. R. (2d) 1080:
“* * * [Wjhere the facts are such that fair-minded men of ordinary intelligence may differ as to the inferences to be drawn therefrom, the question of negligence is for the fury. Emery v. Minneapolis Industrial Exposition, 56 Minn. 460, 57 N. W. 1132. See Nicol v. Geitler, 188 Minn. 69, 247 N. W. 8.” (Italics supplied.)
While I disagree with the decision of the majority, I must concede in fairness that the case is a marginal one on the issue of liability. In such a situation, we should properly be most attentive to the claims of defendant contending that the issue of liability was not decided by the jury on the basis of the evidence. Therefore, while I think that affirmance can be justified here, I could accede without difficulty to a resolution of this case whereby the judgment would be reversed and the plaintiff granted a new trial (a) because of the weakness of the evidence in support of the asserted fact that a mat with interstices Vs of an inch in diameter was available and would have materially reduced the risk of injury without burdensome cost to the defendant, and (b) because a colloquy, which occurred between the jury and the court after the case was submitted, and shortly before the verdict was returned, indicates that the *43jurors may have based their verdict upon a factual theory having no support in the evidence and urged by neither of the parties. An order granting a new trial would permit the plaintiff to supply the missing evidence if - it is available and would enable the court to eliminate the hazard that this case was not decided on the evidence. But if the majority of the court are of the opinion that this is simply a case of no liability, ho purpose would be served by directing a new trial.