Belzer v. Sears, Roebuck & Co.

• Decision Date: 12 October 1934
• Docket Number: No. 18108.,18108.
• Court: Missouri Court of Appeals
• Parties: BELZER v. SEARS, ROEBUCK & CO.

76 S.W.2d 701

BELZER v. SEARS, ROEBUCK & CO.

No. 18108.

Kansas City Court of Appeals. Missouri.

October 12, 1934.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be published in State Reports."

Action by Ida Belzer against Sears, Roebuck & Co. Judgment for plaintiff, and defendant appeals.

Affirmed.

Grant I. Rosenzweig, Benjamin A. Babb, and Harry A. Howard, all of Kansas City, for appellant.

Myer M. Rich, of Kansas City, for respondent.

CAMPBELL, Commissioner.

This is an action to recover damages for personal injuries. Plaintiff had a judgment, from which the defendant has appealed.

Plaintiff's petition alleged that the defendant conducted a mercantile business in its building located in Kansas City; that it maintained concrete stairs connecting the the sidewalk with an entrance to its said building; that on December 16, 1931, said steps were covered with "soft mud" which rendered them unsafe and dangerous to persons walking thereon; that defendant knew of said dangerous condition of said steps or by the exercise of ordinary care could have known of said dangerous condition in time to have removed it. The defendant says that its "sole contention is that, after making all due allowances in favor of plaintiff, the evidence — whether considering plaintiff's evidence by itself — in view of its overwhelming self-contradiction, self-negation, supposition, afterthought, guess work and conflict with physical facts — or still more — considering the total evidence — is not of sufficient character and substance to sustain the verdict." In passing on the question, the evidence of plaintiff, unless in conflict with physical facts, must be accepted as true. Huselton v. Commerce Trust Co. (Mo. App.) 64 S.W.(2d) 757; Munday v. Knox, 321 Mo. 168, 9 S.W.(2d) 960.

The defendant maintained five stone steps which connected the sidewalk with an entrance to its store building.

The plaintiff testified that on December 16, 1931, about 6:30 o'clock p. m., she, her husband, and their three children went to defendant's store building and entered it by way of the stone steps; that at this time the steps were wet and muddy; that she remained in the building 30 to 45 minutes, and then left the building by the same way in which she entered it; that during the time she was in the store there was no change in the condition of the steps. Concerning the cause of her injury she testified:

"Q. Which steps did you slip on? A. From the first.

"Q. The first step? A. Yes.

"Q. Do you mean the landing or the first step down? A. The first one. Not the street one. No the first step.

"Q. The first step? A. Yes.

"Q. Were you standing on the first step when — were you standing on the first step with both feet when this happened? A. No, I was with one foot on the landing.

"Q. One foot on the landing and one on the step? A. One foot on the landing and one on the step when I slipped, yes.

"Q. Which foot was on the step? A. My left.

"Q. Then what happened? A. Then I fell and they carried me in. I was terribly hurt.

"Q. Do you know how you happened to fall? A. No, I just know I slipped on that muddy, wet step."

Plaintiff's husband in direct examination testified that, when he entered the building the steps were "wet and dirty, slippery." In his cross-examination is the following:

"Q. Now you say that the whole place that evening was damp and slippery from the dampness? A. Yes.

"Q. Is that right? A. Yes, sir.

"Q. The steps were slippery from the dampness? A. Maybe the dust and the damp makes it slippery.

"Q. Any mud there? A. Gummy. You can see any place on the sidewalk, you can see —

"Q. (interrupting). That was true on the sidewalk? A. All over was it.

"Q. And the roadway, steps and every place, is that it? A. Yes.

"Q. Is that right? A. Yes, sir.

"Q. And that was from the weather? A. Yes, sir.

"Q. And it was that wet condition of the walk or steps or both that caused her to fall? A. Yes."

The defendant argues that this evidence was not sufficiently substantial to show that the steps were muddy and slippery; that plaintiff's evidence was self-contradictory and in conflict with physical facts. We do not find, nor has the defendant called attention to, any statements in the evidence of plaintiff in the trial which were self-contradictory, nor do we find that her evidence was in conflict with any physical fact. In support of the argument, the defendant cites numerous cases in which the doctrine is announced that an appellate court will not sustain a judgment based on conjecture or surmise; upon unsubstantial evidence; upon evidence in conflict with plain physical facts; nor when the record discloses that the verdict was the result of passion and prejudice on the part of the jury. But in the instant case the testimony of plaintiff and her husband was to the effect that the steps were wet, muddy, and slippery, and that such condition caused plaintiff to fall. This was substantial evidence supporting plaintiff's case, and the jury had the right to believe it.

We will refer to a few of the cases upon which the defendant relies.

In the case of Spohn v. Railroad, 87 Mo. 74, the plaintiff testified to facts which entitled him to have his case submitted to the jury. The court, however, reversed the cause, for the reason that the preponderance of the evidence was "so great as to imply some gross partiality, or some prejudice or misconduct on the part of the jury." See Id., 122 Mo. 1, 26 S. W. 663.

In the case of Empey v. Grand Ave. Cable Co., 45 Mo. App. 424, the jury found a verdict for the plaintiff based upon her testimony. The court set the verdict aside, for the reason that several disinterested witnesses contradicted her.

The case of Lehnick v. Railroad, 118 Mo. App. 611, 94 S. W. 996, was another case in which, if the evidence of plaintiff were true, he was entitled to a verdict. The jury found a verdict for him. The court set it aside for the reason that five witnesses testified in opposition to the evidence of plaintiff.

The doctrine of the cases just cited is not in harmony with later cases, among which is the case of Ensler v. Mo. Pac. R. Co., 324 Mo. 530, 23 S.W.(2d) 1034, 1037, wherein the court held that though the evidence of plaintiff "strains credulity * * * yet the question is one for the jury."

Were we to say that plaintiff's evidence strains credulity, we would nevertheless say that the question was one for the jury.

"It may also be conceded without citation of authority that, where there is any evidence to sustain plaintiff's action, it must be submitted to the jury, and every favorable inference of fact must be made in favor of plaintiff in ruling on a demurrer to plaintiff's evidence." Goucan v. Atlas Portland Cement Co., 317 Mo. 919, 298 S. W. 789, 793.

"If there was any evidence which would sustain a judgment for plaintiff upon any theory, the demurrer to the evidence should not have been sustained." Atlantic Paint Co. v. Halpin-Boyle Const. Co. (Mo. App.) 23 S.W. (2d) 1098.

"And the verdict cannot be disturbed by the appellate court if there is any substantial evidence to support it, even though meager and contradicted by defendant's evidence." Robison v. Chicago Great Western R....