Blackburn v. Katz Drug Co.

• Decision Date: 06 March 1975
• Docket Number: No. 9652,9652
• Citation: 520 S.W.2d 668
• Parties: Stella BLACKBURN and Claude H. Blackburn, Plaintiffs-Respondents, v. KATZ DRUG COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 668

520 S.W.2d 668

Stella BLACKBURN and Claude H. Blackburn, Plaintiffs-Respondents, v. KATZ DRUG COMPANY, Defendant-Appellant.

No. 9652.

Missouri Court of Appeals, Springfield District.

March 6, 1975.

William H. Burden, Jr., Joplin, for defendant-appellant.

Richard M. Webster, L. Thomas Elliston, Myers, Webster, Perry & Elliston, Webb City, for plaintiffs-respondents.

Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.

FLANIGAN, Judge.

The petition against defendant Katz Drug Company was in two counts. In Count I plaintiff Stella Blackburn sought damages for injuries she received while a customer in defendant's store, alleging that one of defendant's employees 'negligently pushed a cart into and against (Stella) knocking her to the floor and injuring her . . .' In Count II plaintiff Claude H. Blackburn, husband of Stella, sought damages for loss of her services. The jury returned a verdict in favor of Stella for $7,000 and in favor of Claude for $3,000 on their respective counts. Katz appeals from the judgment entered thereon.

Of defendant's three complaints of error, two attack the trial court's giving of Stella's verdict-directing instruction number 3 ¹ and the third deals with the failure of the trial court to strike certain medical testimony.

The challenged instruction (MAI No. 22.03 modified):

'Instruction No. 3

Your verdict must be for the Plaintiff Stella Blackburn if you believe:

First, there was a cart moving down an aisle and as a result the intersecting aisle was not reasonably safe for customers, and

Second, Plaintiff Stella Blackburn did not know and by using ordinary care could not have known of this condition, and

Third, Defendant knew or by using ordinary care could have known of this condition, and

Fourth, Defendant failed to use ordinary care to warn of it, and

Fifth, as a direct result of such failure, Plaintiff Stella Blackburn was injured.

unless you believe Plaintiff Stella Blackburn is not entitled to recover by reason of Instruction No. 9.' ²

Katz makes no attack upon the form of instruction 3. Accordingly, this court need not, and does not, decide whether instruction 3 is a 'correct statement of law' or a 'complete statement' as those terms are used in Missouri Approved Jury Instructions, Second Edition, p. XXIII. This opinion decides only the points of error advanced by Katz. Pruellage v. DeSeaton Corp., Mo. 380, S.W.2d 403, 405(3) (Mo.1964). Rule 84.04(d) V.A.M.R.

Katz expresses one of its two attacks upon instruction 3 in the following language: 'The court erred in giving verdict directing instruction no. 3 relating to a dangerous intersecting aisle because there was not sufficient evidence relating to such alleged dangerous condition, defendant's control over and knowledge of such condition and its failure to warn of or remedy the same.'

This attack upon instruction 3 requires a review of the evidence. In so doing, this court must consider the evidence in the light most favorable to Stella, giving her the benefit of all favorable inferences reasonably deducible therefrom and disregarding the evidence of Katz unless it tends to support the submission. Rickman v. Sauerwein, 470 S.W.2d 487, 489(1) (Mo.1971); Underwood v. Crosby, 447 S.W.2d 566, 570(6) (Mo.banc 1969).

Katz maintained a 'retail store and place of business' at 7th and Range Line in Joplin, Missouri. On June 20, 1970, Stella went to the store to look at some slacks which had been advertised. She entered the store from the south and walked down a north-south aisle to look at the slacks. She made no purchase and 'turned around and started back toward the door.' She was walking south down the north-south aisle when she was struck by a 'freight cart' ³ being pushed eastwardly by James Williams, a Katz employee engaged in the course of his duties.

Stella did not see the cart before the impact 'because the merchandise was piled so high on the counter that I couldn't see anything.' There were boxes stacked on the cart and the first time Stella saw Williams was after the impact when Williams was 'looking around the left side' of the boxes. She could not have seen him otherwise because 'the boxes were too tall; taller than (Stella's) head.'

Stella's vision was obstructed by 'racks or displays' located at the northwest corner of the intersection of the two aisles. Stella's height is 5 2 and the racks were higher than her head, maybe 5 4 . Prior to the impact Stella was walking at a normal rate and 'might have been closer to one side of the aisle.' The cart struck her from the right and rolled over her right foot and struck her left foot.

James Williams, who testified for Katz, stated that he first saw Stella at the instant of the impact. Williams was pushing the cart down the east-west aisle, which was about four feet wide. The north-south aisle, on which Stella was walking, was characterized by Williams as 'the main aisle.' Though the width of that aisle is not shown by the testimony, photographs introduced by Stella indicate that its width was approximately the same as that of the east-west aisle. Williams could not recall whether the displays at the northwest corner of the intersection were high enough to obstruct his view of Stella's approach. Williams said that prior to the impact 'I was looking straight east, straight ahead.' He did not know whether he could have seen Stella had he been looking to the left. The cart went into the intersection of the two aisles, Williams did not remember how far, 'but more than a foot.' The impact occurred 'in the middle of both aisles.' The cart was moving when it struck Stella. The cart was used for the purpose of transporting merchandise from one portion of the store to another. Prior to the impact Williams was walking at a normal rate.

'Fundamentally, the basis of a proprietor's liability in a case of this nature is his superior knowledge of the defective condition of his premises which results in injury to his business invitee. . . . If a proprietor knows, or in the exercise of ordinary care should know, of a dangerous condition of his premises which involves an unreasonable risk of harm to his invitee, and of which the invitee, in the exercise of ordinary care, does not or should not know, a recovery will be permitted against the proprietor. . . . But if the dangerous condition is obvious and known, or in the exercise of ordinary care should be known, by the invitee, actionable negligence is not established, and the invitee will not be permitted to recover.' Hokanson v. Joplin Rendering Company, Inc., 509 S.W.2d 107, 110(3, 4) (Mo.1974).

In Hokanson the Supreme Court quoted §§ 343 and 343A(1), Restatement of the Law of Torts, Second (1965). Hokanson supra, p. 110. In § 343, p. 216, Comment b, it is said: '(A)n invitee enters upon an implied representation or assurance that the land has been prepared and made ready and safe for his reception. He is therefore entitled to expect that the possessor will exercise reasonable care to make the land safe for his entry, or for his use for the purposes of the invitation. He is entitled to expect such care not only in the original construction of the premises, and any activities of the possessor or his employees which may affect their condition, but also in inspection to discover their actual condition and any latent defects, followed by such repair, safeguards, or warning as may be reasonably necessary for his protection under the circumstances.' (Emphasis added).

In varying factual situations, ⁴ Missouri courts have found negligence on the part of a store proprietor with respect to aisle conditions.

Liability for injuries resulting from active conduct, as distinguished from conditions of the premises, has been imposed upon the landowner or possessor who fails to exercise ordinary care toward a licensee whose presence on the land is known or should reasonably be known to the owner or possessor. Anderson v. Welty, 334 S.W.2d 132, 136(6) Mo.App.1970 (licensee injured by cattle being driven by defendant's agent). See also Penberthy v. Penberthy, 505 S.W.2d 122, 129 (Mo.App.1973).

Stella had a right to expect an unobstructed aisle. Armstrong v. Kroger Grocery & Baking Co., 78 S.W.2d 564, 571 (Mo.App.1935); O'Bauer v. Katz Drug Co., 49 S.W.2d 1065, 1069 (Mo.App.1932); Blackwell v. J. J. Newberry Co., 156 S.W.2d 14, 17 (Mo.App.1941); Ward v. Temple Stephens Company, 418 S.W.2d 935, 938 (Mo.1967). 'One is not required to look for danger when he has no cause to anticipate it, or when danger would not exist but for the negligence of another . . .' Anderson v. Welty, supra, 334 S.W.2d at 138(8).

Whether or not there was sufficient evidence to submit the issue of Stella's contributory negligence, that issue was in fact submitted to and rejected by the jury. Katz does not claim here that the conduct of Stella amounted to contributory negligence as a matter of law. The obstructions at the northwest corner of the intersection of the aisles made it a 'blind' one. The jury found that the condition of danger did exist at this intersection because of the approach of the cart being pushed by Williams. Unlike Stella, Williams knew the cart was approaching the blind intersection. The knowledge of Williams was the knowledge of Katz. Schaaf v. St. Louis Basket & Box Co., 151 Mo.App. 35, 131 S.W. 936, 940(4), opinion adopted 160 Mo.App. 598, 140 S.W. 1197; 57 C.J.S. Master & Servant § 570, p. 311. The cart did partially enter the intersection and the fact that it was in motion at the time of the impact did not make it less dangerous than a static projection.

Missouri courts take judicial knowledge that the average walking speed is 2.9 to 4.4 feet per second. Miller v. St. Louis Public Service Company, 389 S.W.2d 769(5) (Mo.1965). Since there was evidence that the cart had entered the intersection only a foot or so, the jury could find that it was visible to Stella substantially less than one second prior to the impact, a length of...