Brown v. . Montgomery Ward Co.
8 S.E.2d 199
N.C.
1940
Check Treatment
Devin, J.

The duty of proprietors of buildings with respect to Invitees on their premises has been frequently stated in the decisions of this Court (Bowden v. Kress, 198 N. C., 559, 152 S. E., 625; Anderson v. Amusement Co., 213 N. C., 130, 195 S. E., 386), and in those of •other jurisdictions (Kresge v. Fader, 116 Ohio St., 718, 58 A. L. R., *371 132). Tbe concensus of thesе authorities is that the occupant of premises to which others arе invited to come for business or pleasure owes to* such persons the duty to exercise due care to keep the premises in a reasonably safe condition and to give warning of any hidden peril. The proрrietor, however, is not an insurer of safety, and, when claim is made on aсcount of injury caused by some ‍​​‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​​​‌‌‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​‍article or substance on the floor along and upon which customers may be expected to walk, in order tо' justify recovery it must be made to appear that the proprietor either placed or permitted the harmful substance to be there, оr that he knew or by the exercise of due care should have known of its presence in time to have removed the danger or given propеr warning of its presence. Fox v. Tea Co., 209 N. C., 115, 182 S. E., 662; Cooke v. Tea Co., 204 N. C., 495, 168 S. E., 679; Parker v. Tea Co., 201 N. C., 691, 161 S. E., 209; Robinson v. Woolworth, 80 Mont., 431. As was said in Cummings-v. R. R., ante, 127, “There must be legal evidence of every material fact-necessary to support the verdict.”

In the instant case the appellant urges the view that its motion for judgment of nonsuit should have been allowed, for the reason that plaintiff’s evidence fails to show the source of the grease or oil, either that it was put there by defendant or that it had been on the floor at the place where plaintiff fell for a sufficient length of time to constitute evidence of knowledge оf its presence on the part of defendant, and that ‍​​‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​​​‌‌‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​‍the only materiаl evidence on this point was the plaintiff’s testimony as to the declaration of one of defendant’s salesmen to the effect that the grease came from the washing machine which was “leaking again.” Defendant insists that this evidence was incompetent, as being the declaration of аn agent after the event, and that defendant’s objection thereto-shоuld have been sustained and the evidence excluded from considerаtion.

We concur in the defendant’s view that this testimony was incompetent, and that objection thereto should have been sustained. The declaration of this salesman, who was the salesman in charge of the rug and furniture department and at the time engaged in showing rugs to plaintiff’s wife, was made after the plaintiff’s fall and did not constitute part of the res gestee. The testimony objected to was hearsay and incompetent. Hubbard v. R. R., 203 N. C., 675, 166 S. E., 802; Staley v. Park, 202 N. C., 155, 162 S. E., 202; Batchelor v. R. R., 196 N. C., 84, 144 S. E., 542; Young v. Stewart, 191 N. C., 297, 131 S. E., 735; Nance v. R. R., 189 N. C., 638, 127 S. E., 635; Queen v. Ins. Co., 177 N. C., 34, 97 S. E., 741; 76 A. L. R., 1132; Smith v. R. R., 68 N. C., 107; 20 Am. Jur., 571.

The defendant further contеnds that the elimination of this testimony would entitle it to have its motion ‍​​‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​​​‌‌‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​‍for judgment of nоnsuit allowed. But we cannot reach that conclusion for two reasons: (1) another wit *372 ness later testified without objection to the same declаration, thus rendering harmless the error complained of (Wolfe v. Smith, 215 N. C., 286, 1 S. E. [2d], 815), and (2) it has been several times held with us that where a plaintiff’s case depends upon incоmpetent testimony which has been erroneously admitted, this Court ‍​​‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​​​‌‌‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​‍will consider thе fact that if the court below had excluded the testimony, the plaintiff might havе offered other competent evidence of the fact. This was the ruling in Morgan v. Benefit Society, 167 N. C., 262, 83 S. E., 439, and Midgett v. Nelson, 212 N. C., 41, 192 S. E., 854, where new trials were awarded and nonsuit denied.

The defendant assigns as error a portion of the judge’s charge on thе issue of contributory negligence. The court charged the jury as follows: “The court charges you, that if the defendant has satisfied you from the evidence, and by its greater weight — the burden being upon the defendant — that the plaintiff, оn the occasion in question was negligent, and that such negligence on the part of the plaintiff was the proximate cause of his injury and damage, then, upon such finding by the greater weight of the evidence, it would be your duty to answer the second issue yes. Rut, if the defendant has failed to so satisfy you, it will be your duty to answer the issue No.”

The vice of this instruction is that it omits the essential ‍​​‌‌​​‌‌​‌​‌​‌​​​​​​‌‌​​​‌‌‌​​​​‌‌​‌​‌‌‌​‌​​‌​​​‍element of concurring negligence, as pointed out in Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564, where a new trial was awarded for a similar error.

For the errors pointed out, there must be a

New trial.