Beckermann v. E. H. Kortkamp Jewelry Company

• Decision Date: 06 June 1913
• Citation: 157 S.W. 855,175 Mo.App. 279
• Parties: JOHN H. BECKERMANN, Respondent, v. E. H. KORTKAMP JEWELRY COMPANY
• Court: Missouri Court of Appeals

157 S.W. 855

175 Mo.App. 279

JOHN H. BECKERMANN, Respondent, v. E. H. KORTKAMP JEWELRY COMPANY

Court of Appeals of Missouri, St. Louis

June 6, 1913

Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.

Judgment affirmed.

Watts Gentry & Lee and G. A. Orth for appellant.

(1) The defendant's demurrer to the evidence offered at the close of plaintiff's case and again at the close of all the evidence in the case, should have been sustained because there was no evidence of any negligence on the part of defendant. It is fundamental that in an action for damages based on negligence a demurrer to the evidence should be sustained when the evidence fails to show any negligence. Chandler v. Gas Co., 174 Mo. 321; Harper v Railroad, 187 Mo. 575. (2) The plaintiff himself was guilty of contributory negligence which barred his right of recovery. Ryan v. Kansas City, 232 Mo. 482; Coffey v. Carthage, 186 Mo. 584-585; Wheat v. St. Louis, 179 Mo. 582.

Albert E. Hausman for respondent.

(1) The defendant was guilty of negligence in permitting a hatchway in its store to be opened while plaintiff was in proximity thereto without, in some sure way, warning him of its presence. Welch v. McAllister, 15 Mo.App. 492; Moore v. Korte, 77 Mo.App. 500; Kean v. Schoening, 103 Mo.App. 77. (2) The question of plaintiff's contributory negligence was a matter for the jury to determine. The demurrer to the evidence was therefore properly overruled. Welch v. McAllister, 15 Mo.App. 492; Moore v. Korte, 77 Mo.App. 500; Kean v. Schoening, 103 Mo.App. 77. (3) It was for the jury to determine whether Ralph Jones warned plaintiff, as he says he did, or whether he did not, as plaintiff testified. The jury must pass on the truthfulness of statements made by the witnesses. Weinstein v. Railroad, 128 Mo.App. 224.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

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 "trap door" 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 into 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 to go down into the basement, the plaintiff was standing near it; that he asked the plaintiff to step to one side so that he could open it; and that in compliance with such request the plaintiff took a step or two to one side, whereupon the boy raised the door and proceeded to go down the steps to the basement; that the plaintiff said nothing when asked to step aside, but simply did so. On the other hand plaintiff testified positively that the boy said nothing to him before opening the door; that he did not step aside for the purpose of allowing the door to be opened, and that he had no knowledge or intimation whatsoever that there was such a door and opening maintained in the floor until he turned and stepped into it.

The only assignment of error made by appellant pertains to the action of the court in overruling its demurrer to the evidence, offered by it at the close of plaintiff's case and again at the close of all the evidence in the case.

Appellant insists, first, that the evidence showed no negligence whatsoever on its part, and, second, that it showed that plaintiff was guilty of contributory negligence barring his right to recover.

That these contentions are without merit is readily apparent from the brief statement of the salient facts in the case which we have made above; for it is...