Buffum v. F. W. Woolworth Co.

• Decision Date: 15 June 1925
• Docket Number: No. 15252.,15252.
• Citation: 273 S.W. 176
• Parties: BUFFUM v. F. W. WOOLWORTH CO.
• Court: Missouri Court of Appeals

273 S.W. 176

BUFFUM v. F. W. WOOLWORTH CO.

No. 15252.

Kansas City Court of Appeals. Missouri.

June 15, 1925.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Naomi Buffum (now Bartlett), by her next friend, C. E. Williams, against the F. W. Woolworth Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hackney & Welch, of Kansas City, for appellant.

Achtenberg, Rosenberg, Trusty & Fredman, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,000, and defendant has appealed.

The facts show that on Saturday, September 22, 1919, plaintiff was employed in defendant's hosiery department situated on the second floor of defendant's 5 and 10 cent retail store located in Kansas City, Mo. About 8 p. m. of that day she was ordered by her forelady to go to the stock room on the floor above and get some hosiery. In compliance with this direction, plaintiff went to the stock room, and was injured by falling from the shelf upon which she had climbed in order to obtain the hosiery. About midway of the stock room was a broad aisle running north and south; there were 12 or 15 tiers of shelving extending westward 35 feet from this aisle. These tiers were 5 shelves high. There were stock men and stock ladies in the stock room, who assisted employés, when requested by them, in obtaining stock from the shelves. The evidence shows that the stock ladies usually left about 7 p. m., and that sometimes the stock man remained longer, but there is an inference from the evidence, as will be hereinafter shown, that there was no stock man in the room at the time plaintiff went there for the hose.

Plaintiff, when told to get the hosiery, took a basket and went up a stairway on the north side of the building. The hosiery department was on the south side. There was a freight elevator and desk on the north side of the stock room, and the only lights burning at the time were the ones at the freight elevator and desk. Plaintiff walked south along the north and south aisle, turning On the lights as she went. She also turned on the lights in the aisle between the tiers of shelves where the hosiery stock was kept, but not the lights between any of the other tiers, and in looking down the other aisles she could not see very far. She testified that she looked for an old stepladder, which will hereinafter be described, but failing to find it she stepped upon the second shelf, took hold of one, of the shelves above with her left hand, reached with her right hand and took down boxes of hosiery from one of the shelves and dropped them into the basket, which was on the floor. The bottom of the first shelf was two inches above the floor, and the next shelf above, the one upon which plaintiff stood, was 18 inches from the floor. The balance of the shelves were 15½ inches apart. She remained in this position 2 or 2½ minutes at her work, and, having finished it, took her foot off the shelf preparatory to getting down, when, according to plaintiff's testimony, "the added weight on my hand caused me to fall." She "just slipped off " She testified that her hand was "a little damp and sweaty," but that she did not notice this until after she fell. When she fell she screamed and called for help, but no one responded; she then went to the elevator and called to the elevator girl who came to her assistance, bringing up the elevator.

Prior to the time she was injured plaintiff had been in the stock room about a dozen times, and on one or two occasions had used the stepladder referred to. The first round of this stepladder was gone, and the ladder had a rope extending across its legs on one side to brace it, but the rope did not not accomplish its purpose very well as the ladder was unstable and not solid. The other side of the ladder had no brace whatever. Plaintiff testified that she had seen this ladder but a few times when in the stock room; that she had never been between the shelves on the north side of the room; that she had never seen but one stepladder there. Another witness testified that there was a broken-down box in the stock room which was used at times, but that it was the custom and practice to stand upon the shelves, as plaintiff was doing, to obtain merchandise. Plaintiff testified that she had seen other girls obtain merchandise in this way, as well as her forelady, and there was other testimony to the same effect.

Another witness testified to the effect that she had been in the stock room as many as 500 times, and that she had never seen but one ladder there; that she had never used the ladder herself, but obtained the merchandise as plaintiff was doing at the time she was hurt. Another witness testified that she had obtained merchandise while standing on the shelves in the presence of the forelady, and had never seen any ladder there except one with a rope on its side, and that this ladder "was never around very much." There was no handle or anything with which to hold onto except the shelves themselves. Plaintiff testified that she was 15 years of age at the time she was hurt, and had not obtained an employment certificate. Defendant's testimony tended to show that there were two 6-foot ladders and four 4-foot ladders in the stock room at the time plaintiff was injured.

The petition alleged that plaintiff was injured on the third floor of defendant's retail store, where she was employed. The negligence pleaded was that:

"The defendant was guilty of negligence as follows: (a) In that, although the plaintiff was at said time under the age of 15 years, nevertheless the defendant employed and had plaintiff in its employ in violation of the laws of Missouri prohibiting the employment of minors under 15 years of age and under 16 years of age;" (b) that the place where plaintiff obtained the merchandise was insufficiently lighted, and that the forelady, knowing that she would be required to climb upon the shelves, negligently ordered plaintiff to get the merchandise, and negligently failed to warn her of the dangers in doing the work; (c) that defendant acquiesced in the custom of employés climbing upon and holding to the shelves; that plaintiff was young and inexperienced, and defendant's forelady negligently ordered plaintiff to do the work and negligently failed to warn her of the dangers; (d) that defendant permitted the custom and practice of climbing upon and holding to the shelves, which was not a reasonably safe method of doing the work, and that defendant's forelady negligently ordered plaintiff to do the work, and negligently failed to furnish her with a reasonably safe appliance; (e) that the forelady negligently ordered plaintiff to do the work without furnishing her with a stepladder or other reasonable appliance.

The answer consisted of a general denial, and a plea of contributory negligence and assumption of risk.

Over defendant's objection, plaintiff was permitted to show a failure to obtain an employment certificate as required by article 3, chapter 11, R. S. 1919. In plaintiff's instruction No. 1 the jury was told, among other things, in effect, that it was unlawful for defendant to employ plaintiff in the circumstances without an employment certificate, and submitted the absence of an employment certificate, along with the other acts of negligence pleaded and shown in the evidence as a basis for plaintiff's recovery.

Defendant insists that facts sufficient to show a violation of the statute requiring an employment certificate were not pleaded in the petition, and therefore that it was error to admit evidence showing such a violation. Article 3, c. 11, § 1106, R. S. 1919, provides that no child under the age of 14 years shall be employed in any gainful occupation except during hours when public schools are not in session when such a child may work at agricultural pursuits and domestic service. Section 1107 provides that no child under the age of 16 and over the age of 14 years shall be employed in any gainful occupation unless such child obtain an employment certificate, but such child may work in agricultural pursuits and domestic service during hours that public schools are not in session without obtaining such certificate. Section 1108 provides that no child under 16 years of age shall be employed in any gainful occupation except in agricultural pursuits and domestic service more than 48 hours in any one week, or more than 8 hours in any one day, or before the hour of 7 o'clock in the morning and after the hour of 7 in the evening, with certain exceptions.

Section 1112 prohibits the employment of a child over the age of 14 and under the age of 16 years without an employment certificate on file where it can be inspected by certain public authorities. Section 1113 provides that such certificate shall be issued by the superintendent of instruction, or by some person authorized by him in writing, and where there is no superintendent of instruction, by a person authorized by the board of directors of any school district in the state. Sections 1114 and 1115 provide for the personal appearance of the child before the person authorized to issue the employment certificate, and that no certificate shall be issued unless a personal examination is made by him, and unless the child be able to read and legibly write simple sentences in the English language, and he be of the opinion that the child is 14 years of age, and has reached the normal development of a child of its age, and is of sufficiently sound health and physically able to perform the work it intends to do. Section 1117 provides that the employment certificate shall be subject to review by the factory inspector, and may be canceled by him if he finds it has been obtained through fraud, and:

"The factory inspector or his assistant or deputy shall also have the power to demand a certificate of physical fitness...