Reames v. Jones Dry Goods Company
| Decision Date | 06 April 1903 |
| Citation | 73 S.W. 935,99 Mo.App. 396 |
| Parties | NORA REAMES, Respondent, v. JONES DRY GOODS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.
REVERSED.
Judgment reversed.
Meservey Pierce & German for appellants.
(1) No evidence was introduced tending to show that defendant was guilty of negligence. Torpey v. Railway, 64, Mo.App 387; Stokes v. Burnes, 132 Mo. 214. (2) The court erred in giving instruction number 1, asked for by plaintiff. Short Line v. Tracy, 66 F. 931; Mays v Railroad, 63 Ia. 562 (14 N.W. 340); Hulehan v. Railroad, 68 Wis. 520 (32 N.W. 529); Railroad v. Orr, 84 Ind. 50. (3) Plaintiff assumed whatever risk there was by voluntarily remaining outside of the store. Railway v. Ray, 70 Ga. 674; East Line v. Scott, 68 Texas 694; Hawley v. Railway, 71 Iowa 717; 20 Am. and Eng. Ency. of Law, pages 121, 125; Cummins v. Collings, 61 Mo. 520; Dressler on Employer's Liability, sec. 95; Railway v. Conway, 76 Ill.App. 621; Johnson v. Snuff Co., 41 A. 936; Woodley v. Met., etc., Co., 46 L. J. Exch. 521; Worlds v. Railroad, 99 Ga. 283; Railroad v. Moore, 49 Kas. 616; Atchison, etc., Co. v. v. Schroeder, 47 Kas. 315; Bradshaw v. Louisville, etc., Co., 21 S.W. 346; Wormell v. Railroad, 79 Maine 397; Leary v. Boston R. Co., 139 Mass. 580; Sweeney v. Envelope Co., 101 N.Y. 520; Dougherty v. Iron Co., 88 Wis. 343; Fuger v. Bothe, 117 Mo. 501. (4) Plaintiff was guilty of contributory negligence.
Hollis & Fidler for respondent.
(1) "However conflicting the evidence may be, the courts will not disturb the verdict if the jury has been properly instructed." Minnier v. Railroad, 167 Mo. 99. (2) The master must furnish the servant a reasonably safe place to wait in as well as to work in, especially when he orders the servant to wait, as was done in this case by order to go from one door to the other. Henry v. Railroad, 109 Mo. 493; Halliburton v. Railroad, 58 Mo.App. 27; Monohan v. Coal Co., 58 Mo.App. 68; Devore v. Railroad, 86 Mo.App. 429. (3) Instruction No. 1, given for plaintiff, is not subject to the criticism offered. Wendler v. Furn. Co., 165 Mo. 527.
MINORITY OPINION.
--Action to recover damages for personal injuries resulting from the negligence of the defendant. At the conclusion of all the evidence in the case the defendant requested an instruction in the nature of a demurrer, which was by the court refused. There was a submission of the case under instructions to the jury whose verdict was for plaintiff, and thereupon judgment was accordingly given, and defendant appealed.
The evidence for plaintiff tended to prove about these facts, viz.: The defendant, an incorporated mercantile company, was engaged in carrying on a large and extensive department store wherein it employed something like six hundred and fifty clerks. In the year 1899, in consequence of a disastrous fire, its business was for a short time interrupted and suspended. In the month of November of that year it secured another building in which to resume its business. It had determined to open its store in its new place on December 1, and with that view had, a few days prior thereto, engaged the services of a great many female clerks to help carry on its business then about to be resumed. The day before the opening the plaintiff was employed by defendant to work in the gentlemen's furnishing department. At the time she was employed she was directed to be present at defendant's store promptly on the next morning at 7:45 o'clock, and she accordingly appeared at the front door of its store at the time directed, where she found from 600 to 650 other employees waiting to be admitted to begin work. It appears that of these about 300 were former employees, and the others, like plaintiff, had not been previously in defendant's employment. The former employees were first admitted, and after them the new ones. The latter, after waiting some time, were directed to go to the south door for admission, but on going there they were denied admission, being directed to return to the north door; and on returning there they were again denied admission, but were directed to return to the south door where they were finally admitted. The plaintiff and her witnesses testified that this occupied from an hour to an hour and a half; that during this time the plaintiff stood on the iron steps in front of the store expecting every moment to be admitted. The air at seven o'clock that morning, according to the report of the United States weather observer, was saturated with moisture, its condition being 85 per cent of moisture out of a possible 100. The wind was blowing from the northwest with a velocity of three miles an hour. The temperature was 33 degrees. The plaintiff while standing in front of the defendant's store waiting to be admitted, as aforesaid, felt no serious discomfort except as to her feet. Soon after her admission she for the first time became aware of the presence of a slight uterine discharge. At the close of that day's business she went to her home feeling quite unwell. The next day a physician was called and he found her suffering from inflammation of the ovaries and sciatica, for which he treated her for several months. He testified that it was probable that she would always suffer from these ailments, and that there was a permanent impairment, etc.
The defendant introduced a great number of its employees as witnesses who testified that the time occupied in admitting its horde of clerks into its store was not more than from fifteen to twenty-five minutes, so that in respect to this material fact there is a wide divergence between the testimony of the defendant's witnesses and those of the plaintiff. So the question now is, whether or not, upon the evidence which tends to show the facts just stated, the court erred in its action in refusing to take the case from the jury? Where there is a demurrer to the evidence, every fact must be conceded which it tends to reasonably establish, and in passing upon it the court is required to make every inference of fact in favor of the party offering it which the jury might with any degree of propriety have inferred in his favor. Donohue v. Railway, 91 Mo. 357, 2 S.W. 424; Buesching. v. Gas Co., 73 Mo. 219; Lee v. Geo. Knapp & Co., 137 Mo. 385, 38 S.W. 1107.
At the time plaintiff went to defendant's store she was in its employment and acting under its orders. It had directed her to be there promptly at a specified time. If on her arrival there it was inconvenient to it to admit and assign her to work, what duty, if any, did it owe her while she was waiting for directions to enter the store? Defendant knew that she had obeyed its order and was present at its store door waiting to be admitted. It also knew the season of the year and the then prevailing atmospheric conditions. It also further knew, though she did not, the probable time that would be required in admitting and "timing in" the 300 old clerks, and how long she would probably have to wait before she could be admitted. And it also still further knew that she was waiting and expecting every minute to be admitted. It would have been an easy matter for defendant to have announced to plaintiff and the others that their presence would not be required there for the next hour and a half, so that she could have been afforded an opportunity to find a safer and more comfortable place to wait; or it might have directed her, with the others, to enter its large and spacious building and go to some designated place therein to await further orders.
If there is any one rule of law better settled in this State than another, it is that which enjoins upon the master the duty to furnish the servant in his employment a reasonably safe place to perform the work assigned to him. And the same rule further provides that a default in this on the part of the master makes him guilty of negligence. What is a reasonably safe place to work, where the evidence is conflicting, is always a question for the jury; but where it is all one way it is one for the court. And where the facts relating to the negligence are such that reasonable minds may differ in respect thereto, the case is one for the jury. And the general rule just stated, defining the master's duty to the servant, extends not only to such unnecessary and unreasonable risks which are in fact known to him, but to such as he might reasonably be expected to know under the facts and circumstances connected with the service. The hour and a half that plaintiff occupied the street in front of defendant's store was with its knowledge and by its direction. I can not see that the case would have been different if the defendant after employing plaintiff had assigned her to stand for that length of time in front of its store and hand printed circulars to those passing by, announcing that its store would be open the next day for the sale of rare bargains, etc., or to perform any other service.
It was necessarily implied from defendant's order to plaintiff to appear promptly at the front door of its store at the time specified, that she should be there ready to enter when required to do so, whenever that should be, so that the order in effect was for plaintiff to wait at the front door until it should suit the convenience of the defendant for her to be admitted; hence, plaintiff was so in waiting in obedience to defendant's order as master to a servant in its employment to do a particular thing at a certain place. It was probably as important in the transaction of the defendant's business that the plaintiff should wait on the outside at that time as it would be later on for her to do something else on...
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