Beckermann v. E. H. Kortkamp Jewelry Co.

• Decision Date: 03 June 1913
• Citation: 157 S.W. 855
• Parties: BECKERMANN v. E. H. KORTKAMP JEWELRY CO.
• Court: Missouri Court of Appeals

157 S.W. 855

BECKERMANN v. E. H. KORTKAMP JEWELRY CO.

St. Louis Court of Appeals. Missouri.

June 3, 1913.

Rehearing Denied June 17, 1913.

1. NEGLIGENCE (§ 136) — ACTIONS — JURY QUESTION.

In an action by a customer who fell through an open trapdoor in defendant's place of business, the question of defendant's negligence held under the evidence for the jury.

2. NEGLIGENCE (§ 32) — INVITEES — CARE TO BE USED.

Where a storekeeper maintains an opening in the floor of a passageway used by customers, it is his duty to exercise care in respect to the opening commensurate with the danger involved, and, where the door was negligently left open and a patron fell through, the only defense possible is that of contributory negligence.

3. NEGLIGENCE (§ 136) — ACTIONS — JURY QUESTION.

In an action by a customer who fell through an open trapdoor in defendant's place of business, the question of his contributory negligence held for the jury.

4. WITNESSES (§ 400) — CONTRADICTION.

A party is not bound by every statement a witness called by him may make at the trial, and where he called a witness to prove a particular fact he may contradict the witness' testimony as to other facts.

5. TRIAL (§ 156) — NONSUIT — JURY QUESTION.

A demurrer to the evidence should not be sustained where the evidence in the most favorable light for plaintiff is such that reasonable minds may differ as to his right to recover.

6. TRIAL (§ 140) — JURY QUESTION — CREDIBILITY OF WITNESSES.

The credibility of witnesses and the weight to be given to their testimony are questions for the jury.

7. APPEAL AND ERROR (§ 1002) — REVIEW — FINDINGS.

A finding by the jury on conflicting evidence is conclusive on appeal.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by John H. Beckermann against the E. H. Kortkamp Jewelry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Watts, Gentry & Lee and G. A. Orth, all of St. Louis, for appellant. Albert E. Hausman, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff by reason of falling into a hatchway, or opening, in the floor of the defendant's store in the city of St. Louis. Plaintiff recovered, and the defendant prosecutes the appeal.

The defendant, appellant here, operated a retail jewelry store in the city of St. Louis. The store was fitted up with showcases, and the portion of the premises with which we are concerned consisted of a passageway, intended for the use of customers, between a row of showcases near one end of the wall of the building and a semicircular showcase standing out in the room. In this passageway there was a "trapdoor" in the floor, i. e., there was an opening in the floor something over two feet square covered by a door opening on hinges. This opening led to the basement below by means of steps. When this door was closed, it was level with the floor and formed a part thereof, and, like the remainder of the floor, was covered with linoleum.

On the day that plaintiff received his injuries, he entered defendant's store, walked along the passageway in question to a small window where a watchmaker worked, for the purpose of leaving his watch to be repaired. Not finding the watchmaker at the window, he stepped over to the semicircular showcase, and stood there a short time leaning lightly upon the showcase with his arms. The door in question in the floor was closed when he entered the store and passed down this passageway, in which he was then standing, and he had passed over it; but the evidence shows that as he stood at this showcase an errand boy in the employ of the defendant came through the passageway and opened the door to go down into the basement; that while the boy was descending the steps, and about to reach up for the purpose of pulling the door down after him, plaintiff, having concluded not to wait longer for the watchmaker, turned to his right intending to walk through the passageway out of the store; that upon so turning his first step precipitated him into the open hole in the floor, into which he fell, catching himself on the sides thereof by throwing out his arms.

Plaintiff testified that he did not observe the door in the floor when he came in and passed over it; and that he did not see the boy open it, nor did he know that the door was there until he fell in the opening. The boy who opened the door, one Ralph Jones, was called as a witness for plaintiff. He testified that, when he came to open the door...