#### MILDRED PROPER v. THE GREAT ATLANTIC & PACIFIC TEA COMPANY.

(Filed 3 November, 1937.)

Negligence § 4b — Evidence of negligence held for jury in this' action by store customer to recover for personal injuries.

Evidence that plaintiff, a customer in a store, was struct and injured while standing with her back to a row of shelves, by a sack of flour which fell from a shelf about eight or ten feet high when an employee attempted, with the aid of a hooked stick, to pull a sack of flour off the shelf for another customer, without warning plaintiff, is held, sufficient to take the case to the jury on the issue of negligence, and defendant store company’s motion to nonsuit and request for peremptory instructions were properly refused.

Appeal by defendant from Spears, J., at March Term, 1937, of BaNDOlph. No error.

This is an action to recover damages resulting from personal injuries alleged to have been caused by tbe negligent conduct of tbe defendant’s employee. Appropriate issues were submitted to tbe jury and answered in favor of the plaintiff. From judgment thereon tbe defendant appealed.

Moser & Miller and Lovelace & Kirlcman for plaintiff, appellee.

Sapp> & Sapp for defendant, appellant.

*394Per Curiam.

Tbe plaintiff’s evidence tends to show tbat sbe and ber bnsband were in tbe defendant’s store in High Point as customers on tbe nigbt of 12 October, 1935; tbat there were rows of shelves on each side of tbe store, with no counter on tbe right side; tbat tbe shelves extended to a height of about eight or ten feet; tbat on these shelves were placed various articles of merchandise, and on tbe top shelf on tbe right-band side, near tbe rear of tbe store, were placed 24-pound sacks of flour, three deep; tbat while the plaintiff and ber husband were standing near tbe meat counter at tbe rear of tbe store and near tbe row of shelves on tbe right side just below where tbe flour was packed tbe manager of tbe store came around in a burry to tbe shelves where tbe flour was stacked for tbe purpose of taking down a sack of flour for another customer; tbat tbe plaintiff was standing with ber side toward tbe shelves; tbat tbe defendant’s employee bad a stick three or four feet long with a book on tbe end, and tbat be caught tbe book in tbe end of tbe flour tbat was tied up in some way and undertook to pull tbe flour down off tbe shelf without airy warning to tbe plaintiff, and tbat in so doing tbe flour fell against tbe plaintiff and inflicted certain personal injuries. There was evidence contra.'

Tbe evidence offered by tbe plaintiff was sufficient to be submitted to tbe jury and tbe court below properly overruled tbe defendant’s motions to dismiss as of nonsuit. Tbe cause is essentially one of fact for tbe determination of a jury and tbe jury, under instructions of tbe court, which are unchallenged, has answered tbe issues in favor of the plaintiff.

As tbe plaintiff offered sufficient evidence to be submitted to tbe jury, there was no error in tbe refusal of tbe court below to give tbe special instructions which amounted to a peremptory charge requested by tbe defendant.

There is no error appearing in tbe record.

No error.