Barker v. Silverforb

• Decision Date: 03 March 1947
• Docket Number: 20803
• Citation: 201 S.W.2d 408
• Parties: BARKER v. SILVERFORB et al
• Court: Kansas Court of Appeals

201 S.W.2d 408

BARKER v. SILVERFORB et al

No. 20803

Court of Appeals of Missouri, Kansas City

March 3, 1947

'Not to be published in State Reports.'

R. C Southall, of Kansas City, for appellant.

Henry W. Buck, W. H. Hoffstot, and Morrison, Nugent, Berger, Hecker & Buck, all of Kansas City, for respondents.

OPINION

BOYER PER CURIAM

In an action for damages appellant, plaintiff below, obtained a verdict and judgment for $ 2500 against the respondents. Hereafter the parties will be refered to as plaintiff and defendants. During the progress of the trial the defendants filed their motion for a directed verdict at the close of plaintiff's case and also a similar motion at the close of all the evidence, which motions were denied. Within the time and according to the provisions of Sec. 113 of the new Civil Code of Missouri, Laws of Missouri 1943, page 387, Mo.R.S.A. § 847.113, the defendants filed their motion to have the verdict and judgment entered thereon set aside and to have judgment entered in accordance with their motions for a directed verdict. In sustaining said motion the judgment of the court recited, in part, its findings as follows: 'That the paucity and meagerness of the testimony adduced by plaintiff as to the cause of her fall, in connection with all the evidence in the case, was such as to have justified the court in directing a verdict for defendants and that the evidence failed to constitute a submissible cause of action against defendants and that the court erred in denying the motions for directed verdict filed by the defendants at the close of plaintiff's evidence and at the close of all the evidence.' It was, therefore, ordered and adjudged by the court that the judgment be reopened and that said judgment and verdict be set aside. It was further ordered that judgment for defendants be entered as if the requested verdict had been so directed. Plaintiff's motion for a rehearing was overruled and this appeal followed.

The parties are in agreement that the sole question for determination on this appeal is whether the evidence failed to make a submissible case against the defendants. They disagree as to the meaning and purport of the evidence and the law that should be applied to the proof. We must look to the pleadings for the issues. The amended petition upon which the case was tried alleges that the defendants are the owners and operators of a certain drug store in Kansas City, Missouri, known as Federman's Drug Store, located in the Professional Building at 11th and Grand Avenue in said city; that they are the managers of said drug store and in control of the premises thereof; that on the morning of April 22, 1944, about the hour of eight in the forenoon, or thereabouts, plaintiff entered said drug store for the purpose of becoming a customer and making purchases therein; that she did make certain purchases and started to leave said drug store by an exit leading into the lobby of the Professional Building; that at the time, unknown to plaintiff, there was upon the floor in front of said exit some slick, slippery substance, the exact nature of which was not known to the plaintiff, and that said slick, slippery substance had been placed on or permitted to remain on said floor by said defendants or one of their agents, servants or employees, and the said slick, slippery substance had been there a sufficient time for defendants to have known of the same. It is further alleged that said slick, slippery substance on said floor, with the knowledge of defendants, was dangerous to customers entering said store or departing from said store by the door into the building lobby, and that said defendants knew or by the exercise of reasonable care should have known of the dangerous nature of said substance, and that if it was stepped on by a customer that said customer might fall and be injured, but that the defendants, their servants and employees negligently failed to remove said slick, slippery substance from said floor and plaintiff was caused thereby to fall and be injured; that when she started to leave said store, without knowing of the dangerous condition of said floor and while exercising ordinary care for her safety, she stepped on said slick, slippery substance and then and there fell, and as a result of slipping on said slick, slippery substance on said floor, she then and there suffered a fracture of the metatarsal bone of the left foot. There are other allegations of the result of said injury and the disability of plaintiff resulting therefrom, the loss of wages, and her obligations for doctors and hospital bills, for all of which she demanded judgment in the sum of $ 25,000.

The answer admits that the defendants are the owners and operators of the drug store in question and that on April 22, 1944, plaintiff was on defendants' premises, but denies that she was a customer; denies that she made purchases in the store; denies that a slick, slippery substance was on the floor of said drug store; and denies each and every other allegation in the amended petition; and further states that if plaintiff sustained injury at the time and place mentioned, said injuries were due to plaintiff's own negligent acts and omissions.

The question for determination requires scrupulous scrutiny of the transcript for any and all proof that would tend to support plaintiff's cause of action. From the opposing attitude of the parties in reference to the effect and meaning of the testimony of various witnesses, we deem it advisable to set forth somewhat in detail the testimony of the more important witnesses upon which plaintiff relies.

Admissions and undisputed facts show that the defendants are the owners and operators of the drug store in question; that said store is located in the Professional Building on the southeast corner of 11th and Grand Avenue in Kansas City; that the main entrance to said drug store is at the northwest corner thereof, with an exit from said store into the lobby of the Professional Building; that there are three steps leading from the lobby up to the floor of the drug store, and that the floor of the store is of terrazzo construction. Plaintiff described it as being a 'mottled tile or tile substitute.'

Plaintiff testified in her own behalf and stated in answer to questions that she was a medical laboratory technician employed by three doctors on the fifteenth floor of said building; that on April 22, 1944, she entered the drug store through the corner door at about 8:00 o'clock in the morning; that she was supposed to be on duty at 8:30, and when she had time she usually stopped in the drug store for breakfast; that on the date in question she did stop in said store and ordered coffee and a sweet roll and sat at a table near the east end of the fountain which extended along the north side of said drug store. After finishing her coffee and roll, plaintiff said it was then 8:28 by the clock; that she paid her check and started to leave the store by the exit into the lobby of the building.

'Q. Then what did you do? A. I was walking along at the normal pace and suddenly I slipped and my right foot shot out from under me and I fell on my left ankle. * * *

'Q. Could you tell in more detail just how you fell? Did you crumple or sprawl out or how was that you fell? A. As my foot went out from under me it seemed to turn over a little so that I fell with my left foot under my hip. I was sitting in an upright position. * * *

'Q. Then what happened? A. Well, I sat there trying to get my balance and holding my ankle and some man came from behind the prescription counter and helped me up and I braced myself with my left hand. I couldn't put the weight on my foot. He put me in a chair facing the cigar counter. * * *

'Q. What did you do when the gentleman started to help you up? A. I put my left hand on the floor to keep the weight off my foot because it hurt me to put any weight on it.

'Q. When you put your hand on the floor did you feel anything? A. It was damp and slippery. My hand was slippery and damp from the floor.'

Plaintiff further stated that she sat in the chair about ten minutes and then left the store and went to the office where she worked in the building. Plaintiff further stated that at the time of her fall she was wearing a navy blue short coat; that when she got home that evening she examined the coat and there was a powdered substance on the lower end of the left side in the back, and that was where she had sat on it on the floor.

On cross-examination plaintiff described her fall in the same manner as she had done on her direct examination. Then these questions and answers:

'Q. Did you see anything on the floor as you were walking east there? A. I wasn't looking.

'Q. Did you see anything on the floor? A. No, sir, I wasn't looking.

'Q. So your answer is you didn't see anything. A. Yes, sir.

'Q. Now you testified that your right foot slipped out from under you? A. Yes, sir.

'Q. Did you look at the floor after you fell? A. I looked at the floor when I started to get up.

'Q. Was there a mark on the floor? A. No mark.

'Q. No mark to show where your foot had slipped? A. I was probably sitting on it if there were a mark at that time.

'Q. Did you look for a mark when you got up? A. No, sir. I was in excruciating pain.

'Q. Did you see anything on the floor after you got up? A. No, sir, I didn't look. I felt something on my hand, that is all.

'Q. You don't know whether there was anything on the floor or not? A. No, sir, except what I felt on my hand. My hand felt damp and slippery to feel. I didn't look.

'Q. You say your hand was damp? A. Yes, sir.

'Q. Where you had put it on the floor? A. To help push myself up. * * *

'Q. Now did you look at the floor while you were sitting...