Bailey v. Stix, Baer & Fuller Dry Goods Co.

• Decision Date: 14 June 1910
• Citation: 129 S.W. 739,149 Mo. App. 656
• Court: Missouri Court of Appeals
• Parties: RAILEY v. STIX, BAER & FULLER DRY GOODS CO.

129 S.W. 739

149 Mo. App. 656

RAILEY v. STIX, BAER & FULLER DRY GOODS CO.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

Rehearing Denied June 28, 1910.

1. MASTER AND SERVANT (§ 107)—DUTY TO LIGHT PASSAGEWAY AND STAIRS.

The duty of the master as to furnishing a safe place to work extends to lighting passageways and stairs leading to and from the place of work.

2. MASTER AND SERVANT (§ 103)—SAFE PLACE —DELEGATION OF DUTY.

The duty of the master as to lighting passageways and stairs to and from the place of work is personal, and not delegable.

3. TRIAL (§ 420) — DIRECTION OF VERDICT — WAIVER OF RIGHT.

Defendant, having introduced evidence after the court's refusal to direct a verdict for it, waived its right to insist on the insufficiency of plaintiff's case alone, provided it aided the matter by giving proof of essential facts for her.

4. MASTER AND SERVANT (§ 185) — FELLOW SERVANTS.

A night watchman, charged with the duty of turning off and on lights in a store, which pertains to the master's duty of furnishing a safe place, is not a fellow servant of a clerk in the store.

5. MASTER AND SERVANT (§ 278)—NEGLIGENCE —SAFE PLACE—EVIDENCE.

Evidence in an action for injury to a servant who while going downstairs fell by reason of the lights being out there and in the passageway, held, in view of the presumption that the master had exercised ordinary care in discharging his duty, insufficient to show that defendant had extinguished the lights, to the exclusion of the idea that they were off from some other cause, and that defendant neither knew nor might have known the fact in time to have relighted them before the accident, so as to render defendant liable for negligence.

Appeal from St. Louis Circuit Court; Eugene McQuillen, Judge.

Action by Nellie Bailey against the Stix, Baer & Fuller Dry Goods Company. Judgment for plaintiff. Defendant appeals. Reversed.

Watts, Williams & Dines and William R. Gentry, for appellant. A. R. Taylor and Howard Taylor, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered and defendant appeals.

Defendant conducts a large department store in the city of St. Louis and it appears plaintiff was in its employ, having charge of the employés' wraps in the wraproom on the second floor of the store. Upon concluding work on the day of her injury, plaintiff discovered some one had left a lady's hat and coat in the wraproom. It was her duty to turn those articles over to defendant's night watchman for safe-keeping before quitting the store. With this purpose in view, plaintiff took the hat and coat mentioned, passed out of the wraproom, and through the passageway, about 90 feet in length, to a stair leading from the second to the first floor of the store where the watchman was stationed at the time. Both the passageway and stair were unlighted. Because of this fact, plaintiff stumbled and fell down the stair. As a result of the fall, her arm was broken.

The evidence tends to prove that the passageway from the cloakroom and the stairway as well had always theretofore been lighted by electricity. It appears the stair, instead of passing down straight, turned at right angles about one-half way between the second and the first floors. An arc light had theretofore been maintained near the ceiling of the second floor immediately adjacent to the stairway, and a small electric light had been maintained adjacent to the wall at the turn in the stair. These two lights afforded abundant light in aid of those passing up or down the stairs.

Plaintiff says on the evening in question, though the lights were burning in the wraproom of which she had charge, they were not burning in the passageway nor at the stair when she passed from the wraproom to convey the articles mentioned to the watchman on the first floor. She says the passageway from the wraproom to the stair was unlighted and that she felt her way along the wall through the darkness for a distance of 90 feet to the stair; that upon approaching the stair which was dark, as both the arc lamp above it and the smaller lamp at the turn beneath were unlighted, she was precipitated forward down the stairway to her injury while in the act of feeling for the first step with her right foot, and with her hand against the wall. As to why the lights in the passage and stairway were not burning does not appear; that they had been burning an hour before that time is not questioned, for plaintiff herself testifies that at 5:30 o'clock she passed the same and the lights were aglow.

This was all the evidence introduced on the part of plaintiff and at its conclusion defendant requested the court to instruct a verdict for it on the theory that plaintiff had failed to show any breach of duty on its part. We believe this instruction should have been given for the reason that as it appears the lights were properly burning at 5:30, the mere fact they were not so burning at 6:30 is insufficient to afford the basis for a legitimate inference that defendant had breached its duty in the premises.

There can be no doubt that it was defendant's duty to exercise ordinary care to furnish plaintiff a reasonably safe place to work, and this involves as well the exercise of ordinary care on its part to furnish a reasonably safe way of ingress and egress to and from the place of work. Strobel v. Gerst Bros. Mfg. Co., 127 S. W. 421; Labatt on Master & Servant, § 100a. When obstructions, stairways, or pitfalls in the master's building are to be encountered in passing to and from the place of work, the same principle, of course, devolves upon the master the duty to exercise ordinary care to the end of sufficiently lighting the way of ingress and egress for the purpose of enabling the servant to enjoy a reasonable degree of safety while passing to and from the place of work. It is entirely clear that it was defendant's duty to exercise ordinary care toward maintaining lights at the stairway, until the plaintiff and other employés had quit the service for the day. Labatt on Master & Servant, § 105; Dorney v. O'Neill, 34 App. Div. 497, 54 N. Y. Supp. 235. And, indeed, such is a personal duty of the master which he may not escape by delegating it to another, for it pertains to his obligation in respect of a safe place. Labatt on Master & Servant, §§ 540, 541; English v. Roberts, Johnson & Rand Shoe Co., 122 S. W. 747. If it appeared defendant had wholly omitted to supply any means of lighting the stairway and plaintiff came to her injury as a result of that fact, there would be a clear case of neglect of duty on the part of defendant. But plaintiff's evidence disclosed that an abundant lighting apparatus had been installed and there had been sufficient light at all times, even up to 5:30 o'clock, or about one hour before her injury. Plaintiff, having shown the passage and stairway to be sufficiently lighted at 5:30 o'clock, it devolved upon her to show either that defendant had turned off the lights or that they had been extinguished from some other cause with its knowledge, or for a sufficient length of time to charge it with constructive knowledge before she was entitled to recover. By showing the mere fact that darkness prevailed in the stairway at 6:30 o'clock, plaintiff wholly failed to sustain the burden which the law casts upon her to disclose a breach of duty on the part of defendant operating proximately to her injury. It is very true that the law does not require positive and direct proof as to the fact of negligence but it is nevertheless essential for plaintiff by her proof to indicate clearly that her injury resulted from some negligent act on the part of the master. Labatt on Master & Servant, §§ 835, 836. It is true the law is satisfied in this respect when the proof made furnishes a reasonable inference of negligence on the part of defendant. But if an inference of negligence is relied upon, as in this case, plaintiff is...