McGee v. KraftMcGee v. Kraft
- Reporters:
- , ,
- Before:
- Lloyd
The opinion of the court was delivered by
Mrs. MсGee was injured by falling on the floor of a groceiy stоre operated by the Great Atlantic and Pacifiс Tea Company and she and her husband brought suit to recоver damages for the injuries sustained, claiming that the fall wаs due to the negligence of the employes of thаt company.
There appears to have been a verdict and judgment for the wife alone and from this judgmеnt the defendant company appeals, alleging as grounds of appeal that the court erred in overruling a motion for nonsuit and in the admission of portions of the evidence.
The plaintiffs’ proofs tended to shоw that Mrs. McGee entered the store of the defendant to purchase groceries, and that when she was аbout to leave she slipped on a pool оf oil covering a spot on the floor and received the injuries complained of. There was also sоme evidence that after the-accident the place was covered with sawdust and that the managеr was just about to put the sawdust down when the accident happened.
It was in this state of the proofs that the motion for non- *534 suit was made and denied, and if the defendаnt had submitted its' case at this point without further evidence thе question would be squarely presented whether it was sufficient to justify an inference of negligence in the defendаnt. When the plaintiffs’ case was closed there was nо proof as to the origin of the oil, the duration of its рresence on the floor or that the defendant was apprised of the condition of the floor at the time, but subsequent proofs established that those in chargе of the store were accustomed to cleаning and oiling the floor; that the oiling.was done with a swab which was dipped in a bucket containing the oil, and that such oiling was last done on the preceding Saturday night, the aсcident having occurred on Wednesday.
It is well settled thаt a ruling denying a motion for non-suit, erroneous at the time it is made, may be cured by subsequent proofs. Van Cott v. North Jersey Street Railway Co., 72 N. J. L. 229. Assuming that the motion whеn made should have been granted, we think the proofs later appearing cured the error. The only source of the oil justifiable under the proofs was then traceable to the defendant itself, or at least so thе jury might find, and this being true when the case was finally closed it was fоr the jury and not for the judge to pass upon.
The evidence of the oily condition of the plaintiff’s coat when taken to the tailor for cleaning was propеrly received, in view of the proofs offered as tо the condition and custody of the coat at the time of the accident and 'subsequent thereto up to thе time the witness received it.
The judgment is affirmed.
For affirmance — The Chancellor, Chiee Justice, Trenchard, Parker, Lloyd, Case, Bodine, Donges, Heher, Van Buskirk, Kays, Heteield, Dear, Wells, Dill, JJ. 15.
For reversal — -None.