Bullock v. Sklar, 30711
| Decision Date | 19 September 1961 |
| Docket Number | No. 30711,30711 |
| Citation | 90 A.L.R.2d 318,349 S.W.2d 381 |
| Parties | Marion C. BULLOCK, Plaintiff-Respondent, v. Herman M. SKLAR and Mildred Sklar, d/b/a Goodman Furniture and Hardware Company, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
J. C. Jaeckel, St. Louis, R. S. Roberts, Sr., and J. R. Roberts, Farmington, for defendants-appellants.
Dearing, Richeson & Weier, Will B. Dearing, Hillsboro, for plaintiff-respondent.
DOERNER, Commissioner.
This is an action by the plaintiff to recover damages for personal injuries alleged to have been sustained by him while a customer in a store operated by defendants in Bonne Terre, Missouri. The trial, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff for the sum of $15,000, from which defendants have appealed.
Defendants' initial point relied on, containing various subdivisions, is that the evidence was not sufficient to make a submissible case, and that their motion for a directed verdict, or their after-trial motion for judgment, should have been sustained. This requires a review of the evidence, in the light most favorable to the plaintiff. The store operated by the defendants occupied the first floor of a building extending north and south, with the front facing south. At the rear of the store a stairway led to a balcony which extended crosswise of the building, from east to west. A steel beam 7 inches wide, which supported the upper portion of the building, ran the length of the store, the bottom being 5 feet 7 inches above the floor of the balcony.
Plaintiff was 74 years of age at the time of the trial, and was 5 feet 9 1/2 inches in height. He had retired from his former employment with St. Joseph Lead Company some 16 years before trial, because of a heart attack. The sight was lost in his right eye, except for the ability to perceive a bright light held close to the eye. Plaintiff testified that he could see to get around with the left eye, aided with glasses, but that he had to look down to see where he was walking. The testimony of Mrs. Nadine Zimmerman, plaintiff's daughter, was that plaintiff habitually walked in a stooped position to see where he was going. On the morning of February 16, 1959, plaintiff and his wife, accompanied by their daughter, Mrs. Zimmerman, went to defendants' store to purchase furnishings for their house. They were waited on by defendant Herman Sklar. After certain purchases had been made on the main floor plaintiff expressed a desire to buy a bed spring and mattress, and was told by the defendant that those articles were on display on the balcony.
Mrs. Zimmerman was the first to ascend to the balcony, and spent a few moments there before the others arrived. Sklar led the way, up the stairs, and across to the west wall, where the mattresses were displayed, followed by plaintiff, and then his wife. They were joined there by Mrs. Zimmerman. Plaintiff selected a mattress and a bed spring. Mrs. Zimmerman returned to the main floor before the rest of the party. Their return trip was along the same route taken on the way to the mattresses, with Mrs. Bullock in the lead, followed by Sklar, and with plaintiff bringing up the rear. Plaintiff testified that he was watching Sklar's feet, when Sklar turned or wheeled around and threw up his hands; that he straightened up to see what Sklar was motioning at; and that as he did so he hit his head on something, sank to his knees, and somebody grabbed him. The next thing he remembered was downstairs when Mrs. Bullock was paying Sklar. Mrs. Bullock and Sklar confirmed plaintiff's testimony that Sklar had motioned with his hands, that plaintiff had straightened up, and that plaintiff had hit the beam with his head. Sklar's explanation of the movement of his hands was that he had gestured with them in talking.
Plaintiff, his wife, and their daughter all testified that they had not seen the beam, and did not know it was there. Sklar testified that he knew that a person walking under the beam could strike it. He stated that he had to 'duck' to go under it, and that on occasions he had bumped his own head on the beam. He conceded that he knew that on the return trip from inspecting the mattress the plaintiff would have to pass under the beam, and admitted that he never at any time warned the plaintiff of the presence of the beam. He admitted, further, that there were no signs warning customers of the presence of the beam.
There was a sharp conflict in the evidence as to the amount of light which prevailed on the balcony. Mrs. Zimmerman testified that when she first ascended she did not see any lights burning, and that it was 'dim'; and that while there was sufficient natural light that she could see merchandise that was displayed, it was not light enough for her to 'inspect' it. Neither plaintiff nor his wife saw any lights on the balcony. Plaintiff said that there was enough light so that he could see the floor, but not sufficient for him to see the merchandise. At the time a selection of the mattress was being made, according to Mrs. Zimmerman, she remarked that one was a cheaper grade than another, whereupon Sklar said 'No,' reached up and turned on a light, and stated that the second was the higher priced mattress and the first was the cheaper grade. At the trial Sklar testified on direct examination that when he reached the balcony he turned on two fluorescent lights, one of which was only a few feet from the mattresses, and one a conventional or incandescent light. He also said that lights always burned on the first floor, and that the rear fixtures for such lights were only a few feet from the balcony. However, on cross-examination he admitted that when his deposition had been taken, prior to the trial, he had testified that he didn't recall how many strings he pulled to turn on the lights; that it was customary for him to turn the lights on when he took people up to the balcony, and that he thought he followed that procedure on the day plaintiff was there; but that there was no way to explain the difference in his testimony between that given when his deposition was taken, and that at the trial.
It is well settled that the basis of the defendant's liability in a case of this nature is his superior knowledge of the defective condition of his premises which results in the injury to plaintiff. Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Company, Mo., 312 S.W.2d 55; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278. If a defendant knowingly permits a condition to exist which involves an unreasonable risk of harm to the plaintiff, of which the plaintiff, in the exercise of ordinary care, does not or should not know, a recovery against him will be permitted. Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 74 A.L.R.2d 938. While if the danger is obvious, or as well known to the plaintiff as to the defendant, actionable negligence is not established, and the plaintiff will not be permitted to recover. Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Schmoll v. National Shirt Shops of Missouri, 354 Mo. 1164, 193 S.W.2d 605; Stafford v. Fred Wolferman, Inc., Mo., 307 S.W.2d 468. Defendants do not contend that the presence of the beam above the balcony at a height of 5 feet, 6 inches did not create a hazardous condition. Nor do they deny that they were aware of the likelihood of a person striking the beam. The arguments made in support of their contention are, first, that the plaintiff did not prove the allegations upon which he predicated his right to recover; and second, that under the circumstances of this case they were under no duty to warn plaintiff of the presence of the beam.
Defendants' point to an allegation in plaintiff's petition that defendants were under a duty to warn plaintiff of the presence of the beam because they were aware of the impairment of plaintiff's eyesight, which obliged plaintiff to walk in a stooped position. They maintain that there was no evidence tending to show that Sklar was aware of plaintiff's impaired vision, and that the court should therefore have directed a verdict in their favor. Considering plaintiff's petition as a whole, plaintiff's charge of negligence was the hazardous condition created by the beam, and defendants' failure to warn him thereof. The allegations as to his physical disability and the manner in which he walked were unnecessary, and though pleaded it was not essential to plaintiff's right to recover that he prove them. Ferguson v. Union Electric Co. of Missouri, Mo., 282 S.W.2d 505; Hathaway v. Evans, Mo.App., 235 S.W.2d 407.
The gist of defendants' second contention that under the circumstances of this case defendants were under no duty to warn is that the beam was open and obvious, and that its presence should have been known to plaintiff. In support of their argument defendants cite numerous cases from this and other states holding that it is not negligence to fail to warn when the circumstances do not indicate the necessity therefor. Not all of the decisions cited deal with the relationship of proprietor and invitee. Of those which do, most involve floors or steps alleged to have been in a dangerous or defective condition, as in Howard v. Johnoff Restaurant Company, supra. Two, however, deal with overhead obstructions, Myles v. Helena Motors, Inc., 113 Mont. 92, 121 P.2d 548; Losie v. Frisk, 243 App.Div. 825, 278 N.Y.S. 25, involving automobile hoists or lifts in both cases. In all of the cases cited by defendants, including the latter two, there was an abundance of light by which the dangerous condition was readily discoverable. That was not the situation in the instant case, and the insufficiency of the illumination is the factor which distinguishes it from the cases relied upon by defendants. It was not the existence of the beam alone which created the hazard, and...
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