Barken v. S. S. Kresge Co.

• Decision Date: 07 June 1938
• Docket Number: No. 24469.,24469.
• Citation: 117 S.W.2d 674
• Parties: BARKEN v. S. S. KRESGE CO.
• Court: Missouri Court of Appeals

117 S.W.2d 674

BARKEN v. S. S. KRESGE CO.

No. 24469.

St. Louis Court of Appeals. Missouri.

June 7, 1938.

Rehearing Denied June 21, 1938.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Action by Hattie Barken against the S. S. Kresge Company, a corporation, for injuries sustained in trying on a pair of sun glasses offered for sale by defendant. From a judgment for the plaintiff, defendant appeals.

Affirmed.

Wayne Ely and Leahy, Walther, Hecker & Ely, all of St. Louis, for appellant.

Herman Barken, of Clayton, and Strubinger & Strubinger, of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries sustained by respondent, plaintiff below, alleged to have been caused by the negligence of appellant, defendant below. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $1,500.00. After an unavailing motion for a new trial, defendant brings the case to this court by appeal.

Plaintiff's amended petition, upon which the case was tried, alleges that on June 17, 1935, plaintiff entered defendant's store in University City, Missouri, as a customer of defendant, intending to purchase sun glasses which defendant displayed and offered for sale to the public; that plaintiff tried on a certain pair of sun glasses, and, in removing them, her right eye was severely cut and injured by a sharp and unfinished point at the end of the right temple of said sun glasses, which sharp and unfinished point cut plaintiff's right eye so severely that the eye and the sight thereof have been permanently damaged and impaired. After alleging that plaintiff's injury was directly caused by the negligence of defendant, the petition charges three specifications of negligence. The case was submitted to the jury on the first specification of negligence, which is as follows:

"1. That the defendant negligently and carelessly displayed and offered for inspection and sale to members of the public and particularly to this plaintiff a pair of sun glasses, the right temple of which had a sharp point at the end which was liable to injure respective customers when handling said glasses, and that by reason thereof said sun glasses were dangerous and not reasonably safe to be handled, which said condition was known to the defendant, or in the exercise of ordinary care could have been known to it, in time to have withdrawn said glasses from display and avoided plaintiff's injury."

The second charge of negligence is that defendant negligently delivered a pair of sun glasses to plaintiff to try on when defendant knew, or, in the exercise of ordinary care, could have known, that the right temple of said glasses had a sharp point at the end which was liable to injure plaintiff when handling and trying on said glasses; and that, by reason thereof, said glasses were unsafe and dangerous.

The third specification of negligence charges that defendant knew, or, by the exercise of ordinary care, could have known of the dangerous condition of said sun glasses, and negligently failed to warn plaintiff of said dangerous condition.

The answer of defendant contains a general denial coupled with a plea of contributory negligence as follows:

"Further answering, defendant says that whatever injuries, if any, plaintiff sustained on the occasion mentioned in her petition were the result of her own negligence and carelessness, directly and proximately contributing thereto as follows, to wit:

"Plaintiff negligently and carelessly removed the sun glasses mentioned in her petition from her own face, head and temple and negligently and carelessly stuck the said sun glasses in her own eye."

Defendant's first contention is that the court erred in refusing to give to the jury an instruction in the nature of a demurrer to the evidence requested by defendant at the close of the whole case.

Defendant argues that the article causing plaintiff's injury was not of an inherently dangerous character, and that to make a case for the jury it was necessary for plaintiff to show actual knowledge on the part of defendant of the alleged defect in the sun glasses, and that the evidence failed to show such actual knowledge on the part of defendant.

Defendant further contends that the alleged act of omission by defendant was not such as to create actionable negligence for the reason that the injury was not one reasonably to have been anticipated as a consequence of the failure of defendant to inspect said glasses.

Plaintiff testified that she was a married woman, and had lived in University City about ten years; that, on June 17, 1935, she was in defendant's store in University City, which is a retail store selling goods at five and ten cents and up to a dollar; that she and her mother, whose age was seventy-five years, had gone to the store to get a pair of sun glasses; that sun glasses were on display at a counter near the front door; that the counter was in charge of Miss Chaleff, an employee of defendant; that, after she had tried on two or three pairs of sun glasses, Miss Chaleff picked up a pair of sun glasses and handed them to plaintiff; that they were then open, and plaintiff put them on and looked in the glass; that, as she was taking them off, the right temple piece closed quickly and cut the eyeball of her right eye. Plaintiff's testimony on this point was as follows:

"Yes, sir, this saleslady was there during all of the time I was there trying on sun glasses. When she handed me this pair of sun glasses, she opened them and I put them on, and looked in the glass, and as I was taking them off I held them by the corners and the thing closed real quickly and cut me across the eye-ball. This pair of sun glasses had dark brown tortoise shell rims; the side pieces that come back over the ears must have been celluloid shell and were the same color as the rims. * * *

"When she handed them to me she had them open, and I put them right on, and as I took them off this ear piece on the right side closed real quickly and cut across the eye and the eye-ball—the right eye. As I took the glasses off I was holding them here (indicating) at the eyes, on either side; and had hold of the hinge on either side; the temple piece is fastened to that hinge. I had my fingers on the temple piece right at the beginning of it.

"The first knowledge I had that this temple piece had cut my right eye was when I felt a sharp point like a knife cut me; it all happened so quickly, all at the same time; I first felt this sharp cut in my eye and I said, `Oh, my! I hurt my eye!' The young lady behind the counter said, `Why, you cut your eye!'"

Plaintiff testified further that she started to look at the temple piece that had cut her eye, and that it was "just like the end of a paring knife; just a sharp end; just as sharp as a knife. The very end of the right temple piece was sharp, and when I said `Oh, my! I hurt my eye!' the young lady said, `Why, your eye is bleeding', and I still had the glasses in my hand and I looked in the mirror and the blood was running out of the eye, all bloodshot." Plaintiff testified further that she became very excited and handed the glasses to Miss Chaleff and said to her, "You had better take them, this is the pair that did it, before somebody else gets them and does the very same thing"; that the saleslady took the glasses from plaintiff, and plaintiff ran out of the store to her brother's drug store about two blocks away; that about five minutes thereafter she returned to defendant's store, saw defendant's store manager, and showed him her eye; that the manager told her to go to whatever doctor she chose and to get in touch with him and let him know how she was; that the manager asked her if she could pick out the glasses, and she told him that she had given them to Miss Chaleff, and that she could not stand there and pick out the glasses because her eye hurt; that her eye was watering and bleeding, and had a burning sensation.

Plaintiff testified concerning her visit that same day, shortly after her injury, to Dr. North and the treatment of her eye by Dr. North, Dr. Bailey and Dr. Jones at Dr. North's office; that thereafter she went to Dr. North's office continuously for about two months, with the exception of about three or four days. She also testified concerning treatment given to her by Dr. Gitt, who treated her for her nerves so that she could sleep. We deem it unnecessary to go into details concerning plaintiff's injury and the treatment she received because no point is made in this court as to the amount of the damages.

Ida Chaleff, who was the only other person present at the time of the accident to give testimony in the case, testified on behalf of defendant that she was employed by defendant in its store in University City; that she knew plaintiff from coming into the store; that, on the day mentioned, plaintiff was in the store looking at sun glasses; that the sun glasses were displayed in rows on a counter which was seven feet long and between three and four feet wide; that she suggested to plaintiff the type of glasses plaintiff should wear, but did not pick them up; that plaintiff tried the glasses on and took them off in a hurry, and that the bow of the glasses struck plaintiff's eyeball; that plaintiff took hold of the sides and jerked them off and threw them down on the counter; that plaintiff did not at any time hand the glasses to her; and that thereafter she could not find the glasses that injured plaintiff. The witness further testified that right after plaintiff was injured, the witness reported to the manager that plaintiff had grabbed the glasses by the nose piece and jerked them off.

Gottlieb Barken, plaintiff's husband, testified that two days after the injury to his wife he went to defendant's store and asked Miss Chaleff if she had the glasses that had caused his...