This is an appeal on questions of law from a judgment of the Court of Common Pleas of Summit county in favor of Grace K. Fox, the plaintiff in that court, in an action in which she sought damages for personal injuries received by her when she stepped on a slippery substance on the floor of the defendant's grocery, fruit and vegetable store, as she was leaving it after purchasing groceries therein from the defendant, Ben Schechter Company.
The appellee alleged that the appellant was negligent *Page 276 in allowing decayed or partially decayed fruit and vegetable matter to remain on the floor in the main aisle of the store near the front door, that she entered the store, went to the rear, was engaged in making purchases for fifteen to twenty minutes, and, as she was leaving the store, slipped on this matter and fell against a counter.
There is substantial evidence to support this claim and that the matter had been upon the floor for fifteen minutes or more at the time of the accident.
The plaintiff was not asked whether she had seen this substance on the floor and did not testify on that subject. There was no evidence that she knew that it was on the floor.
The accident occurred on the 2nd day of February, 1933, shortly after 5:30 p.m. The store was well lighted, but there is evidence that the lights were so situated that the decayed fruit and vegetable substance was in the shadow of the counter.
There was no direct evidence as to how or by whom the substance was placed upon the floor. There was evidence that the store was equipped with a refuse chute leading to the basement, and that the opening to this chute was in the wall about six or eight feet from the place where the appellee slipped.
It is argued that in this situation the record fails to disclose any negligence on the part of the defendant, and that the court should have sustained the appellant's motions for instructed verdict and should have rendered judgment in its favor. This argument is countered by the appellee's claim that it was the duty of the defendant to exercise reasonable care to see that the floor would be reasonably safe for customers, that it was its duty also to exercise reasonable care in inspecting the floor to discover any substance thereon that would cause it to be unsafe for its customers, and to exercise reasonable care to guard its customers against such danger. *Page 277
The appellee contends that the evidence makes it more probable that the defendant, through its clerks, had placed this substance on the floor and that, therefore, an inference to that effect may be drawn, and, furthermore, that the evidence that this substance had been on the floor from fifteen to twenty minutes in a room 20 by 50 feet, where the defendant had several clerks, and where customers were in attendance, was substantial evidence that the defendant either knew, or in the exercise of reasonable care should have known that the substance was on the floor long enough before the accident to have removed it, had it exercised reasonable care.
We believe the appellee's position is sound. The evidence presents an issue of fact to be determined by the jury rather than an issue of law to be determined by the court.
Counsel rely principally upon Kroger Grocery Baking Co. v.McCune, 46 Ohio App. 291, 188 N.E. 568, and Lowe v. HippodromeInn Co., 30 Ohio App. 520, 165 N.E. 749, but these cases present no novel principle. On the contrary, they declare the old doctrine that if the evidence shows the invitee was injured as the direct result of a defect in the premises and that defect existed at the time of the accident through the negligence of the occupant who had invited the plaintiff, then there is a liability. Of course for negligence to exist, there must be some sort of knowledge of the condition causing the injury. If the occupant created the condition, of course, he had knowledge. Proof that he created it would be proof that he had notice. And this proof may take the form of circumstantial as well as direct evidence.
If the evidence shows that someone else created the condition, or if there is no evidence as to the creator of the condition, then evidence that the occupant knew of the condition must be adduced to impose a duty upon the occupant with reference thereto. This evidence *Page 278 of notice to the occupant also may be either circumstantial or direct.
The cases relied upon by counsel for appellant recognize all these rules.
It is true that in applying these rules to the facts of those cases, the court held that the plaintiff had failed to adduce any evidence of knowledge on the part of the defendant.
In the case at bar there is evidence from which the jury could reasonably infer it was more probable that the condition was created by the defendant. It was operating the store. It had control of the fruit, vegetables and groceries while they were loose and until placed in some kind of a bundle and delivered to the customers to be taken from the store. While being handled by defendant, placing them in bins, on counters, displaying them and then delivering them to customers, the likelihood of dropping them upon the floor was very much greater than after they were bundled up and delivered to the customers. Furthermore, it is not to be supposed that decayed fruit would be delivered to a customer.
It is possible that a customer dropped this grape. That is not the question. The question is whether there is evidence that makes it more probable that defendant dropped it. In Sears,Roebuck Co. v. Peterson, 76 F. (2d.), 243, it is said at page 246:
"But it is urged by defendant that there was no proof that defendant had knowledge of the presence of the twine upon the floor, or that it had been upon the floor for such a length of time as to charge it with constructive knowledge. This is not a case in which the condition was attributable either to the elements or the act of some third party. The negligence here complained of was that of the defendant itself, committed, it is true, by its employee. It would be an anomaly to hold that one is not to be charged with notice of a condition arising from his own active negligent *Page 279 act, or that there must be proof of knowledge or notice of a dangerous condition created by the negligent act or omission of the owner of the premises. It is universally held that the owner of the premises is charged with notice of any structural defects in his property, on the theory that one must be charged with notice of his own act, and, hence, whenever defective conditions are due to the direct act of the defendant, or of persons whose acts are constructively his own, no notice need be shown, but is necessarily implied."
If the jury concluded that it was more probable that defendant dropped the fruit, no further evidence was necessary on that branch of the case. If the jury did not draw that inference, it could have concluded that no matter who created the condition it had been there fifteen or twenty minutes and that under the circumstances the defendant should have discovered it in that time and have had sufficient time to remove it after discovery and before the plaintiff was injured. If it reached this conclusion, this element of liability was established in that way.
We are also of the opinion that the issue of contributory negligence was properly submitted to the jury, and that the finding of the jury on the issues should not be disturbed by the court. We cannot say that the verdict is manifestly against the weight of the evidence.
Finding no error in the record, the judgment of the Court of Common Pleas of Summit county is affirmed.
Judgment affirmed.
HAMILTON, J., concurs.