Armstrong v. Kroger Grocery & Baking Co.

• Decision Date: 28 January 1935
• Docket Number: 18065
• Parties: ARMSTRONG v. KROGER GROCERY & BAKING CO. et al.
• Court: Kansas Court of Appeals

78 S.W.2d 564

ARMSTRONG v. KROGER GROCERY & BAKING CO. et al.

No. 18065

Court of Appeals of Missouri, Kansas City

January 28, 1935

Appeal from Circuit Court, Johnson County; Leslie A. Bruce, Judge.

“ Not to be published in State Reports.”

Action by Margaret Armstrong, a minor, by her next friend, Effie C Armstrong, against the Kroger Grocery & Baking Company and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

W. E Suddath, of Warrensburg, and Mosman, Rogers & Buzard and Don. E. Black, all of Kansas City, for appellants.

G. W. O’Donnell, of North Kansas City, Russell Garnett, of Warrensburg, and John C. Carr, of Kansas City, for respondent.

OPINION

TRIMBLE, Judge.

Plaintiff, a minor of 12 or 14 years of age, by next friend, brought this suit against the corporate defendant, Kroger Grocery & Baking Company, and the individual defendant, J. C. Lawson, to recover damages caused by a fall she suffered in a retail grocery store in North Kansas City (being one of the numerous grocery stores in Missouri owned and operated by said corporate defendant); the particular grocery store in question being operated and managed by the individual defendant, Lawson, he having at the time of the fall, as alleged in the petition, the "active and supervisory control over the merchandise, fixtures, and appliances, the floors, aisles, passageways, counters, baskets, merchandise displays and merchandise sales in and about said store, and that the said J. C. Lawson is a resident of Kansas City, Jackson County, Missouri."

The petition also alleged:

That on the 5th day of November, 1931, plaintiff, in company with her mother, entered said store in North Kansas City, Mo., for the purpose of purchasing defendants’ goods and wares, and, having completed their purchases, "they attempted to leave said store and while plaintiff in the exercise of ordinary care, was passing along or through a narrow aisle or passageway leading toward the front door of defendants’ said store, which said aisle or passageway was provided by defendants for the use of its customers including this plaintiff, plaintiff came in contact with a wire basket, negligently and carelessly caused or permitted by defendants to be placed or left in or about or in close proximity to said narrow aisle or passageway, all of which was unknown to plaintiff; that plaintiff was thereby caused to stumble or to trip and fall to her knees, to and upon said floor of said store, injuring plaintiff as hereinafter set out."

"That defendants negligently and carelessly failed to keep said narrow aisle or passageway in a reasonably safe condition for the use of its customers, including plaintiff and her mother; and defendants negligently placed, or suffered and permitted said wire basket to be placed, or kept, or be and remain in or in close proximity to said narrow aisle or passageway, so provided for use by its customers, including this plaintiff; that the said J. C. Lawson as the agent and manager of said defendant Kroger Grocery & Baking Company, negligently and carelessly placed or caused said wire basket to be placed as aforesaid; that the presence of said wire basket, in or in close proximity to said narrow aisle or passageway, created conditions dangerous and unsafe, in or about said narrow aisle or passageway, for the users thereof, at the time plaintiff and her mother attempted to use said aisle or passageway, in departing or attempting to depart from defendants’ store and said condition was unknown to plaintiff."

"That by reason of defendants’ negligent acts, as aforesaid, plaintiff was caused to stumble, or to trip and fall to or upon the floor of defendants’ said store; that as a result of plaintiff’s fall, the skin, tissues, cartilages, periosteums, sacs, joints, bones, articular surfaces and coverings, linings, membranes, muscles, nerves, ligaments and tendons, in or about plaintiff’s left knee, left knee joint, left knee-cap, left hip and left leg, were bruised, contused, abrased, sprained, wrenched, twisted, torn, impinged, impacted, dislocated and fractured; that as a result of said injuries, plaintiff’s left leg in or about said left knee joint and kneecap became swollen, inflamed, adhered, stiffened and weak and has become permanently stiffened, adhered and atrophied and its usefulness greatly and permanently impaired; that plaintiff has suffered and in the future will suffer great pain of body and anguish of mind; that plaintiff has lost and will continue to lose her natural rest and sleep; that plaintiff’s left leg is now and will remain crippled and deformed."

Defendants filed joint answer which contained, in addition to a general denial, a plea of contributory negligence, "in that the plaintiff failed to use reasonable and ordinary care in walking about the premises and to observe and see where she was walking, and to avoid walking into display racks and baskets, but instead thereof, without taking any such precautions and without looking to see where she was walking, carelessly and negligently walked into and against a wire basket and thus directly contributed to bring about any injuries she may have received."

Plaintiff’s reply was a denial of the defendants’ answer.

The case was tried at the June term, 1933, on the 27th day of June, 1933, and on the next day the jury returned a verdict for plaintiff in the sum of $1,000, and, from a judgment thereon, defendants have appealed.

Appellants say the court erred in overruling the special demurrers offered by both defendants at the close of plaintiff’s case, and in refusing to give defendants’ instructions A and B, which were peremptory instructions to return a verdict for the defendants. The refusal to give the demurrers offered at the close of plaintiff’s evidence was waived when the defendants, refusing to stand on said demurrers, introduced evidence in their behalf.

Upon the question whether defendants’ peremptory instructions in the nature of demurrers to the evidence offered at the close of the entire case should be granted, it may be said that it was stipulated and agreed by the respective parties in the bill of exceptions that-

1. "It is hereby admitted and agreed that the testimony on behalf of the plaintiff, given at the trial of this cause, was amply sufficient to prove that plaintiff fell in the store of the Kroger Grocery & Baking Company, in North Kansas City, Missouri, on November 5, 1931, and thereby sustained injuries to her left knee, as so alleged in plaintiff’s amended petition; and that there is to be no question raised by the defendants on appeal as to the extent of plaintiff’s injuries, or that the verdict is excessive, or that the verdict was the result of any passion, prejudice or misconduct on the part of the jury."

2 and 3 (relating to the lack of any need for the testimony of certain named witnesses), for the reason that "defendants (appellants), are raising no question as to the nature and extent of plaintiff’s injuries, or that the verdict is excessive."

4. "That, inasmuch as the question on appeal involves only the question as to whether or not there was a case made by plaintiff, only the testimony of the plaintiff; the testimony of her witness, Edward Sharkey (both direct and in rebuttal); the testimony of the defendant, J. C. Lawson, in deposition form read to the jury by defendants’ counsel, and the testimony of defendants’ witness, Ira F. Dabler, need be set forth in said bill of exceptions."

5. "That, inasmuch as the question on appeal involves as to whether or not there was a case made for the plaintiff-(1) as to whether or not the trial court committed error in refusing to give the separate general demurrers on behalf of both defendants requested by said defendants at the close of plaintiff’s case; (2) as to whether or not the trial court erred in refusing to give the separate special demurrers to each of the charges of negligence as alleged in plaintiff’s petition on behalf of both defendants, as requested by said defendants, at the close of plaintiff’s case, and after the separate general demurrers, on behalf of both defendants, had been by the court overruled; and (3) whether or not the trial court committed error in refusing to give Instruction ‘A’ in the nature of a general demurrer as asked by the defendant, J. C. Lawson, at the close of all the evidence, and in refusing to give Instruction ‘B,’ in the nature of a general demurrer, at the close of all the evidence, as asked by defendant, Kroger Grocery & Baking Company; no other instructions, given or refused by the court, except as aforeindicated, need be incorporated in the bill of exceptions, nor need be considered by the court on appeal."

6. "That the defendants (appellants) are not raising any point, nor making any complaint of the correctness of plaintiff’s instructions Nos. 1 and 2, as given by the trial court-except that the evidence in this case failed to make out a case which should have been submitted to the jury."

The evidence of the plaintiff herself, of Edward Sharkey, of defendant J. C. Lawson, and of defendants’ witness, Ira F Dabler, appears in the abstract of record pursuant to the above stipulation, but the evidence of the two last named need not be shown or considered here if a case is made for the jury by the evidence of the two first named. If not, then the evidence of the two last named may be looked at and considered solely for the purpose of seeing whether there is sufficient therein to "eke out" or supply whatever, if anything, is lacking in the evidence in plaintiff’s behalf to make a case for her. The jury are the judges of the weight of the evidence, and they have the right to say whom or what they believe. Consequently we need not set out defendants’...