Associated Dry Goods Corporation v. Drake

• Decision Date: 14 May 1968
• Docket Number: No. 18858.,18858.
• Parties: ASSOCIATED DRY GOODS CORPORATION, a Corporation, Appellant, v. Wylor D. DRAKE and Kermit Drake, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

394 F.2d 637 (1968)

ASSOCIATED DRY GOODS CORPORATION, a Corporation, Appellant, v. Wylor D. DRAKE and Kermit Drake, Appellees.

No. 18858.

United States Court of Appeals Eighth Circuit.

May 14, 1968.

COPYRIGHT MATERIAL OMITTED

F. Douglas O'Leary, of Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, Mo., for appellant; M. E. Stokes was with F. Douglas O'Leary, St. Louis, Mo., on the brief.

Samuel T. Vandover, St. Louis, Mo., for appellees; Edward L. Dowd and Arthur Friedman, St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, Chief Judge, MATTHES, Circuit Judge and HARRIS, Chief District Judge.

HARRIS, Chief District Judge.

This appeal is from a judgment in favor of the plaintiffs, Wylor D. Drake and Kermit Drake, her husband, (appellees) in the sum of $7500.00 and $500.00, respectively, as damages resulting from personal injuries sustained by Wylor D. Drake and medical expenses and loss of services sustained by Kermit Drake.

The plaintiffs instituted this action against Stix, Baer & Fuller, Inc., a corporation, to recover damages for injuries sustained by plaintiff, Wylor D. Drake, as a result of her slipping and falling as she was going down a stairway on the premises of the defendant, which were directly and proximately caused by the defendant's (appellant) negligence.

By agreement, and with approval of the Court, Associated Dry Goods Corporation, a corporation, was substituted for Stix, Baer & Fuller, Inc., a corporation, as the proper defendant and operator of the department store. It was agreed that, if there was any liability, Associated Dry Goods Corporation, a corporation, is the proper party to be held responsible.

It is alleged by the plaintiff that on or about the 31st day of October, 1961, Wylor D. Drake sustained severe and permanent injuries on the premises of the defendant as she was descending the terrazzo steps going down to the basement from the outside on the Sixth Street side of the premises; such injuries resulting from her stepping and falling on the steps and being caused by the negligent and careless acts and omissions of the defendant. More specifically, the plaintiffs claim the defendant failed to exercise reasonable and ordinary care in maintaining and keeping the stair-steps in a safe condition by allowing them to become worn, beveled and rounded, slick and smooth; by failing to provide treads on the steps and to place a mat or other tread-like surface thereon when the defendant knew, or by the exercise of reasonable and ordinary care could have known, the steps were in a dangerous condition; by failing to warn the plaintiff, Wylor D. Drake, of the dangerous condition when the defendant knew, or by the exercise of reasonable and ordinary care could have known, that in such dangerous condition the plaintiff, Wylor D. Drake, might be injured thereon; by allowing water to accumulate and remain on the steps creating such dangerous condition; and that the defendant knew, or by the exercise of reasonable and ordinary care could have known, that the condition of the steps was not safe for use, and negligently and carelessly failed to remove the water to make the condition safe or to give warning to the plaintiff, Wylor D. Drake.

Wylor D. Drake testified that she arrived at the Sixth Street entrance to the defendant's basement store in a service cab about 10:00 or 10:30 on October 30, 1961. The purpose of going to the basement store was to "pick up some Will Call" packages. After getting out of the service car she "made a few steps across the sidewalk to go down into the basement store". It was raining at the time, enough to cause her to be wearing a raincoat and a plastic scarf on her head. The service car had its windshield wipers on.

As she approached the entrance, which was at the time an open entrance from the outside to the store steps going down, she looked down, put her foot on the first step and caught hold of the right railing. She started down the steps, slipped and fell.

There was no covering at the entrance. There was no mat or anything on the top step. She looked down before descending the steps. She failed to notice that there was water on the steps. She did not know how many steps she fell down, but was stopped by her leg striking the right railing in the center of the steps. Immediately after the fall she noticed that she "was wet, my dress was terribly wet, my raincoat, my hair at the lower part there, wet".

Someone assisted her. She could hear people talking, but couldn't see them. She was in a dazed condition. She heard somebody say "this lady is hurt". She was taken to the basement in the shoe department. She was attended by a nurse, put in a wheelchair, and taken upstairs to the first aid room. On the way upstairs she asked that she be rolled back by the steps to see what caused the fall. She looked up the steps and saw that they were wet and had some thick heavy-looking substance on them. She was wheeled on to the first aid room where she remained about forty-five minutes to an hour. The nurse took her to the elevator and waited until she entered it.

The elevator took her back to the basement. She walked up the same steps on which she slipped and fell and observed the steps as she went up. She identified photographs of the steps as they appeared at the time of the accident, except "they were not wet".

The weather report for October 30, 1961, revealed that there was a trace of rain beginning at 3:10 a. m.; that there was a heavy rainshower beginning at 5:58 a. m., and decreased to light rain at 6:18 a. m.; that there was a light rain continuing until 12:46 p. m., a total rain fall of .39 inches.

Edward V. Hamilton, supervisor of maintenance of defendant's store since 1955, identified photographs that were properly introduced into evidence depicting the involved steps as fairly representing the appearance of the steps in October of 1961. They show that the leading edges of the top four steps are worn, beveled and rounded, slick and smooth. They also show that the steps are open to the elements of weather.

E. W. Bilhorn, a qualified consulting engineer, testified as an expert witness for plaintiffs. Terrazzo steps have a dense stone surface. When it becomes worn and rounded, or becomes wet, it becomes more slippery. After describing the general characteristics of the steps and as they appeared at the time, the witness expressed an opinion that the steps were not properly constructed originally and were unsafe.

The defendant's testimony consisted of reading some questions and answers from the deposition of plaintiff, Wylor D. Drake, taken on July 1, 1964. No witnesses or other evidence was offered to support its contentions.

At the close of the plaintiffs' case the defendant filed a motion for a directed verdict and renewed the motion at the close of all the testimony.

The defendant contends that (1) the court erred in denying appellant's motion for a directed verdict, (2) the court erred in its instruction to the jury, and (3) the court erred in the admission of the expert testimony. We consider these contentions in the order of presentation.

SUFFICIENCY OF THE EVIDENCE

The plaintiff's evidence, if not contrary to the physical facts, must be accepted as true in consideration of the motion for a directed verdict and considered in the light most favorable to the plaintiff. Clifford v. F. W. Woolworth Company, Mo.App., 201 S.W.2d 416, 421; Zacher v. Missouri Real Estate & Insurance Agency, Inc., Mo.Sup., 393 S.W.2d 446.

The general rule applicable to the issues involved here is that: "A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm * *." 2 Restatement of the Law of Torts, Sec. 343. And see Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813, 818; Wattels v. Marre, Mo.Sup., 303 S.W.2d 9, 14, 66 A.L.R.2d 433; Stafford v. Fred Wolferman, Inc., Mo.Sup., 307 S. W.2d 468; Vogrin v. Forum Cafeterias of America, Inc., Mo.Sup., 308 S.W.2d 617; Wilkins v. Allied Stores, Mo.Sup., 308 S.W.2d 623.

The evidence was sufficient to establish that the plaintiff, Wylor D. Drake, was an invitee, a customer, and that she entered the defendant's premises to pick up a purchase of goods offered for sale by the defendant. Wilkins v. Allied Stores, Mo.Sup., 308 S.W.2d 623, 628; Wattels v. Marre, supra; Happy v. Walz, 358 Mo. 56, 213 S.W.2d 410, 414.

It is well settled under the law of Missouri that the owner or occupant of a premises who, by invitation, express or implied, induces others to come upon his premises, for any lawful purpose, is liable in damages to such persons, using due care, for injuries occasioned by the unsafe condition of the premises or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public, or to those who were likely to enter thereupon by such invitation. Happy v. Walz, supra; Cf. Stoll v. First National Bank of Independence, 345 Mo. 582, 134 S.W.2d 97, 100.

As stated in Dean v. Safeway Stores, Mo.Sup., 300 S.W.2d 431, 432, and restated in Wilkins v. Allied Stores, supra, the rule as declared and set forth in the Restatement is firmly imbedded in the jurisprudence of this jurisdiction, for the time being, and the problem is whether the facts and circumstances of the occurrence in question reasonably fit into the pattern of the rule as it has been established...