Now it is apparent that the defendant had notice of the existence of the syrup on the floor, by reason of the knowledge of its employee of such fact.
It is also apparent that the defendant through its employee took certain measures to remove the syrup, which, obviously, judging by the result, was a menace to the safety of customers. It appears also that the defendant, through its employee, left a portion of the syrup and glass on the floor and went elsewhere, and that some precaution was taken to guard the area. This is giving the defendant, rather than the plaintiff, the most favorable construction of the evidence.
It cannot be claimed, nor is it contended that the presence of the syrup on the floor was not the proximate cause of plaintiff’s injuries. The contrary is true. The evidence is not in conflict upon this question. The plaintiff fell when she slipped on the syrup. There is no evidence indicating she was guilty of contributory negligence. So that the question presented is:–Did the defendant, through its employees, use reasonable care to remove the cause of the injury to plaintiff, after becoming aware of its existence? This involves a consideration of two phases of the situation:–(1) the measures used to remove the syrup (2) the care taken to guard the area. Stating it another way, it was a question whether or not the defendant, through its employees, used the care which a reasonably prudent person would use under the same or similar circumstances to prevent injury to the plaintiff. Certainly, this would be a question for the jury’s determination. The trial court considered that only a question of law was involved, and inferentially held by its decision that the care exercised by the defendant through its employees was adequate. In this, the trial court usurped the function of the jury, who were well qualified to judge what, under the circumstances, was reasonable care. The average person serving on a jury would be well acquainted with the perils incident to walking about a grocery store and fully able to judge what would be reasonable care in avoiding harm to customers.
