#### Owen v. Kroger Co.

5-3313

382 S. W. 2d 192

Opinion delivered September 28, 1964.

George F. Hartje, Jr., and Moses, McClellan, Arnold, Owen & McDermott and James R. Howard, for appellant.

Cockrill, Laser, McGehee & Sharp, for appellee.

George Rose Smith, J.

This is an action by Ed Owen and his wife to recover damages for personal injuries and loss of consortium resulting from Mrs. Owen’s having slipped and fallen upon a banana peel on the floor of the Kroger Company’s grocery store at Conway. At the close of the plaintiffs’ proof the trial court directed a verdict for the defendants (the company and its local manager) on the ground that the peel was not shown to have been on the floor sufficiently long for the defend*414ants to be chargeable Avith negligence in having failed to discover it. Kroger Gro. & Baking Co. v. Dempsey, 201 Ark. 71, 143, S. W. 2d 564. The sufficiency of the evidence is the only' question before us.

The fall took place betAveen 10:30 and 11:00 in the morning. Mrs. OAven testified that as she Avas leaving the check-out counter she stepped on a slippery object and fell and hurt herself. She said that “one of the boys” (apparently a store employee) picked up a large dark object aiid said that it Avas a banana peeling. Mrs. TurnboAV, the clerk at the counter, exclaimed: “I’m sorry, Mrs. Oavgh, but there Avas small boys in here eating bananas earlier this morning.”

Giving the proof its strongest force in favor of the plaintiffs Ave think an issue of fact Avas made. The jury might reasonably have believed that the boys bought the bananas in the store, in Avhich case their peelings Avould be apt to be yelloAV rather than dark in color. The darkening process, as Ave all knoAv, takes time. Moreover, the clerk’s expression, “earlier this morning,” ordinarily connotes something more than the lapse of a very short time, as the appellees suggest. Had the interval been extremely brief Mrs. TurnboAV might be expected to have said “a feAv minutes ago,” or Avords to that effect. At the very least there is an area of uncertainty that entitles the plaintiffs to the benefit of our doubts until the defendants come fonvard with more explicit testimony. If the plaintiffs were required to shoAV the exact time Avhen the peeling Avas dropped the defendants Avould be right in arguing that the ansAver lies in the realm of speculation. But the plaintiffs’ burden Avas merely to shoAV that the interval, though indefinite, Avas substantial. AVe think their testimony fairly supports that inference.

Reversed.