Olivia D. WILSON, Plaintiff Below, Appellant,
Howard J. DERRICKSON and Luella M. Derrickson, his wife, t/a Derrickson's Corner Cut Rate Drug Store, Defendants Below, Appellees.
Robert D. Thompson, Jr., Georgetown, for appellant.
Jackson W. Raysor, of Tunnell & Raysor, Georgetown, for appellees.
SOUTHERLAND, Chief Justice, WOLCOTT, Justice, and MARVEL, Vice Chancellor, sitting.
This is an appeal from a judgment for the defendants in an action for personal injuries, entered at the direction of the trial court at the close of the plaintiff's case.
The plaintiff's brief sets out two questions for our consideration but in reality we think they are basically the same, i. e., did the plaintiff establish a prima facie case by either direct or circumstantial evidence which required the submission of the issue of defendants' negligence to the jury.
The record shows that the plaintiff made the following factual showing. The plaintiff is a woman, a paper hanger by trade, who has followed that trade for upwards of 20 years with no record of falls or injuries while working at her trade. On October 1, 1959 she went into the defendants' drug store in Lewes, a place where she had been many times before, to make a purchase of tobacco for a friend's birthday. She was wearing at the time flat-heeled shoes similar to the type worn by her while working at her trade. In entering the store she was walking normally and not hurrying. She did not observe upon her entry the condition of the floors and whether or not there were any obstacles or extraneous matter upon them.
The defendants' store proper is divided into aisles by counters or display racks, and at the time in question, by reason of the display of merchandise in the large windows at the front of the store, the interior was not particularly well lighted.
The plaintiff walked to the tobacco counter, made a purchase of tobacco and then inquired of one of the defendants who waited upon her where the birthday cards were. He pointed to a rack and the plaintiff turned to walk along an aisle toward it and took three or four steps in a normal, unhurried manner.
In the course of so doing, the plaintiff slipped and fell violently to the floor upon her hands and knees. She was [54 Del. 202] dazed, shocked and in pain. She was assisted to her feet and went out of the store to her parked car and drove herself home. She did not inspect the floor after falling to see what, if anything, was on it which had caused her to fall.
Upon arrival at home, the plaintiff discovered her stockings, dress and coat, as well as her hands and knees, were stained and covered with a dark, oily substance, apparently in some profusion. She cleaned up as best she could and changed her clothes. Eventually, the clothes she was wearing at the time she fell in the defendantants' store were thrown away by her because the black, oily stains could not be removed.
The plaintiff called as a witness one of the defendants who testified that the floor of the store was an old pine one and in order to keep down the dust it was his custom to oil it periodically, approximately once in every two months. He testified that he could not remember the date of the last application of oil to the floor prior to the plaintiff's accident, but he stated positively that it was his uniform habit to oil the floor on a Saturday night so that the oil thus applied would have an opportunity to be absorbed into the floor by the next Monday morning since the defendants' store was always closed on Sundays. October 1, 1959, the date of plaintiff's accident, was a Thursday.
The plaintiff contended at the trial, and now contends before us, that the above facts were proof of circumstances which would permit the jury to infer that she slipped on the floor of the defendants' store by reason of an excess of oil thereupon which had been placed there by the defendants in a negligent manner so as to permit an accumulation to remain in the aisle in which the plaintiff fell. The trial judge thought to the contrary and directed the jury to bring in a verdict for the defendants. Plaintiff appeals.
When an action is filed based upon the negligence of the defendant, such negligence is never presumed from the [54 Del. 203] mere fact that the plaintiff has suffered an injury and, in all cases, the burden is upon the plaintiff to affirmatively prove negligence on the part of the ...