Asbury v. Fid. Nat. Bk. & Tr. Co.

• Decision Date: 07 December 1936
• Docket Number: No. 18650.,18650.
• Citation: 100 S.W.2d 946
• Parties: JOHN G. ASBURY, RESPONDENT, v. FIDELITY NATIONAL BANK AND TRUST COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

100 S.W.2d 946

JOHN G. ASBURY, RESPONDENT, v. FIDELITY NATIONAL BANK AND TRUST COMPANY, APPELLANT.

No. 18650.

Kansas City Court of Appeals. Missouri.

December 7, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Marion D. Waltner, Judge.

AFFIRMED.

Clarence C. Chilcott for respondent.

Morrison, Nugent, Wylder & Berger, Charles C. Byers and Henry W. Buck for appellant.

CAMPBELL, C.

Plaintiff's wife on June 2, 1932, while walking down an interior stairway in the defendant's bank building in Kansas City, slipped, fell and was injured. He brought this suit to recover the damages resulting to him from the injuries, had a verdict and judgment. The defendant has appealed.

The evidence shows that the defendant constructed a building at the southeast corner of the intersection of Walnut Street and Ninth Street in Kansas City and occupied and used a part of that building as its banking house from February 1, 1932, until time of the trial of this cause; that the steps upon which plaintiff's wife slipped and fell were placed by defendant in its banking quarters for the use of its employees and customers; that the treads of the steps were of pink Tennessee marble, honed finish; that the condition of the treads of the steps remained the same from the time they were constructed until long after plaintiff's wife fell. There was expert evidence to the effect that pink Tennessee marble is a "very hard marble" and that when that type of marble which has a honed finish is placed upon the steps of a stairway "we have always used something on the treads;" that a honed finish is a "dull finish" and "has a polish, but not as high as a high polish." The plaintiff introduced in evidence pieces of pink Tennessee marble, one of which was identical in finish with the treads of the steps in the stairway.

The defendant's vice-president, Mr. McDonald, was plaintiff's witness. He testified that a month or two after the bank was opened he had a conversation with another officer of the defendant bank in regard to placing safety treads on the steps of the stairway in question "because it was suggested by various customers of the bank;" that the officer with whom the conversation was had was under duty to oversee the proper maintenance of the "banking quarters."

The defendant's employee, Allee, was also plaintiff's witness. He said that the steps did not have "any appearance of being slick." The plaintiff's wife in giving her testimony said that she had passed up or down the steps six or seven times prior to her injury; that the steps did not "look slick," and that she did not know they were slick until after she fell; that after she fell she placed her hands upon the steps and then for the first time became aware of the fact that the steps were slick; that when she started down the steps she saw a woman and two boys "coming up in a great hurry," and that she stepped to the north, slipped and fell. The evidence shows that plaintiff's wife was an invitee of the defendant and that other persons had fallen on the steps.

The defendant presents seventeen assignments of error and these are restated under the heading "points and authorities." The defendant's first point is that the court erred in refusing its requested instruction in the nature of a demurrer to the evidence for the following reasons:

1. That there was no evidence showing an improper or dangerous condition of the steps; (2) no evidence showing negligence on the part of the defendant; (3) no evidence showing notice to the defendant prior to the fall of plaintiff's wife of an allegedly dangerous condition of the steps; (4) that plaintiff's wife was, as a matter of law, guilty of contributory negligence; (a) that plaintiff's wife was thoroughly familiar with the condition of the steps prior to her fall; (5) and that the proximate causes of the fall of plaintiff's wife were the approach upon the steps of some boys, and the movements made by plaintiff's wife in attempting to prevent their colliding with her.

There was substantial evidence warranting the jury in finding that the steps "has a polish," were slick, slippery and unsafe; that the defendant constructed and maintained the steps and, therefore, had actual knowledge of their true condition; that prior to the time plaintiff's wife fell "various customers" of the defendant suggested to it that safety treads should be placed upon the steps; that the steps had a dull finish, did not appear to be slippery or unsafe; that the unsafe condition of the steps was not obvious to plaintiff's wife or known to her until after she fell and that her fall was caused by the unsafe condition of the steps; that the jury examined samples of marble identical with the marble used on the treads of steps and, therefore, had opportunity to know the true condition of the steps.

The legal principle controlling the determination of the question as to whether or not the case was one for the jury has been stated as follows:

"The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.... And, hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant." [Vogt v. Wurmb et al., 300 S.W. 278.]

The evidence in the instant case considered in a light most favorable to the plaintiff brought the case within the rule approved in the Vogt case, supra.

The facts in regard to the question concerning the contributory negligence of plaintiff's wife are in legal effect the same as the facts in the case of Burnison v. Souders et al., 35 S.W. (2d) 619, in which this court held that the plaintiff therein was not guilty of contributory negligence as a matter of law. The court correctly ruled the request for directed verdict. [Glaser v. Rothschild, 120 S.W. 1; Hohlt v. Routt et al., 48 S.W. (2d) 386; State ex rel., Elliott's Department Store v. Haid et al., 51 S.W. (2d) 1015.]

The defendant's next point is that the court erred in admitting evidence over its objection showing that other persons had fallen upon the steps after the time plaintiff's wife fell thereon.

"The frequency of accidents at a particular place would seem to be good evidence of its dangerous character; at least, it is some evidence to that effect." [District of Columbia v. Arnes, 107 U.S. 591.]

The condition of the steps was not changed between the time they were constructed and the times when other persons fell thereon. And, hence, evidence showing that other persons fell upon the steps, was admissible. [Morrow v. Missouri Gas & Electric Service Company, 286 S.W. 106; McCall v. City of Butler, 285 S.W. 1018; Lake Superior Loader Company v. Huttig Lead & Zinc Company, 264 S.W. 396; Shouse v. Dubinsky, 38 S.W. (2d) 530.]

The next assignment is that the court erred in admitting, over the objections of defendant, evidence of custom in regard to the type of finish upon steps in other buildings, the treatment of such steps and the type of treads used in other buildings.

The plaintiff over the objections of the defendant was permitted to show by expert witnesses of many years' experience that it was the general custom and practice in Kansas City and vicinity to install safety devices upon the treads of steps such as the treads here involved. And though this action is not predicated upon the violation of a general custom, evidence showing violation of a general custom was competent "since the very existence of the general custom consists with the idea that prudent men may have followed it." [Cassin v. Lusk, 210 S.W. 902. To the same effect see 45 C.J. 709; Willis v. Buchanan County Quarries Company, 268 S.W. 102; Stein v. Buckingham Realty Company, 60 S.W. (2d) 912; Bruce v. Baer, 76 S.W. (2d) 423; Caldwell v. Payne, 246 S.W. 312.] The evidence was admissible although custom was not pleaded. [Pevesdorf v. Union Electric Light & Power Company, 64 S.W. (2d) 939.]

The defendant argues that the plaintiff was permitted to show "individual instances, both as to types of finish, and as to Mason treads and carborundum strips."

One of the expert witnesses was asked the following question: "Now, I want — do you ever put any cover on them (steps)? A. We use a Mason safety tread." The defendant's motion to strike the answer was denied. The answer of the witness, taken in connection with other parts of his testimony, clearly shows that he was speaking of the general custom and not of an individual instance.

The defendant contends that the court erred in admitting plaintiff's exhibits A.B. and C. These exhibits were samples of marble identical with the marble used upon the treads of the steps upon which plaintiff's wife fell. One of the exhibits had a honed finish on one side and a polished finish on the other. These exhibits aided by the jury in determining whether the steps were smooth and reasonably safe, as the defendant contends, or whether the steps were slick and slippery to the extent that they were unsafe and dangerous, as the plaintiff contends, and, for that reason, it was proper to receive exhibits in evidence. [Dudley v. Wabash R.C. Co., 150 S.W. 737; Connor v. Wabash R.R. Co., 129 S.W. 777; Morrow v. Missouri Gas & Electric Service Company, 286 S.W. 106; Bloecher v. Duerbeck, 92 S.W. (2d) 681.]

The defendant complains of the action of the court in admitting evidence relative to the use and effect of cleaning fluids used on the steps upon which plaintiff's wife fell. This evidence was elicited in the cross-examination of defendant's expert witness Kellar. This witness in his direct examination testified concerning the custom, not only in Kansas City, but over the "entire country" concerning the finish used in steps in public buildings. The question to which objection is...