Cameron v. Small

• Decision Date: 05 September 1944
• Docket Number: No. 38901.,38901.
• Citation: 182 S.W.2d 565
• Parties: CAMERON v. SMALL et al.
• Court: Missouri Supreme Court

182 S.W.2d 565

CAMERON v. SMALL et al.

No. 38901.

Supreme Court of Missouri, Division No. 1.

September 5, 1944.

Rehearing Denied October 9, 1944.

Appeal from Circuit Court, Jackson County, Division No. 2; James E. Burke, Special Judge.

Action by Mary Cameron against John Small and another, doing business as Parkview Pharmacies, to recover for injuries sustained by plaintiff when he slipped and fell in the entrance passageway of defendant's store. From a judgment for plaintiff, the defendants appealed. The judgment was reversed and the case remanded by the Kansas City Court of Appeals, 175 S.W.2d 177, and thereafter the case was certified and transferred to the Supreme Court under Mo.R.S.A.Const. Amend.1884, § 6.

Judgment of the Circuit Court reversed and case remanded.

Clay C. Rogers and Mosman, Rogers, Bell & Conrad, all of Kansas City, for appellants.

Cyril Baucke, Cowgill & Popham, and Sam Mandell, all of Kansas City, for respondent.

VAN OSDOL, Commissioner.

Appeal from a judgment for plaintiff in the sum of $2000 for personal injuries, the alleged result of a fall in the entrance passageway of defendants' store. The case has been certified and transferred to this court under the provisions of Section 6, Amendment of 1884, Article VI, Constitution of Missouri, Mo.R.S.A. See Cameron v. Small et al., Mo.App., 175 S.W.2d 177.

Plaintiff alleged that defendants were negligent in maintaining an inclined passageway in a smooth, slippery and unsafe condition and without the use of an abrasive device or material to prevent slipping, of all of which plaintiff was unaware. This defendants denied; and defendants charged that plaintiff was contributorily negligent in failing to observe the floor of the passageway, watch her step, and see where she was going.

Errors of the trial court are assigned (1) in overruling defendants' request for a peremptory instruction at the close of all of the evidence; (2) in giving of instructions; and (3) in admission of evidence.

The evidence viewed in the light most favorable to plaintiff is as follows:

Defendants-appellants conduct a retail drug business as lessees of a storeroom at the northwest corner of the intersection of Independence and Prospect Avenues in Kansas City. Entrances are provided at the southeast corner and in the south side of the store. The door of the south entrance (on Independence Avenue) is recessed in a passageway. The floor of the passageway from the door to the sidewalk consists of a concrete ramp four feet wide at the door, and six feet three inches wide at the sidewalk line where it is approximately five inches above the surface of the sidewalk. The ramp declines six inches from the threshold to the sidewalk line, a distance of three feet six inches — the declining grade is close to 15 per cent, or a little less than two inches per foot. The ramp is so exposed that its surface can become wet in rainy weather. A screen door, three feet six inches in width, was swung in the doorway at the time plaintiff sustained her injury, the screen door being so hinged upon the west jamb as to swing outwardly; the lower half of the screen was overlaid with half-inch mesh hardware cloth, and the base of the screen door was a solid wooden panel seventeen or eighteen inches wide.

Defendants have conducted their business at this site for more than thirteen years, and have in no way treated the surface of the concrete ramp, although the use of the ramp through the years has worn a "valley that comes down through the middle of the slope" about one-fourth inch in depth. The ramp at its edges "against the window sills, or the bulkhead" of the passageway is of the rough texture of the concrete as it was originally laid. "In the middle where the traffic would be that is a smooth surface and when you move your foot back and forth on it it is more or less easy to do. In other words, it is somewhat slippery." Water upon the surface, it appears from the evidence, "has a tendency to make the slipperiness more accentuated." It could be inferred, from photographs introduced into evidence, that the smooth surface extends to and includes a discolored area over near the east side of the ramp and just without the threshold at a point where one's foot falls when, having opened the screen door, one passes out through the doorway. It was in this area, as plaintiff-respondent (a customer, leaving defendants' store) stepped out through the door into the passageway, that her foot slipped, causing her to fall and sustain injury. She had been in the store numerous times theretofore, but had never, it seems, used the south door. Plaintiff stated, "* * * I didn't look at the entrance" and "Well, I just walked right on out the door * * * didn't see — wasn't looking particular at anything, just kind of just went on out, opened the door and walked out when I slipped and fell." It had been misting the afternoon of plaintiff's injury and the surface of the ramp was wet. Others had slipped in passing through the passageway on five or six occasions when the ramp was wet. There was no evidence which compels the inference that plaintiff's slipping was due to any object or condition other than the wet, slippery condition of the incline of the ramp. Witnesses for defendants stated that the surface of the central part of the ramp was about the same in appearance and texture as its surface near the walls (window sills) of the passageway and as the surface of the adjacent sidewalk. And a witness for defendants further stated that in frequently walking over the ramp it had never appeared slick or slippery to him. According to the testimony of a consulting engineer, witness for plaintiff, it is the general practice and custom "in this community" with respect to the conditions similar to those of defendants' passageway, "to treat the surface with some roughening material, or leave the surface rough when it is poured." Some other facts are stated in the course of the opinion.

(1) Of the contention of defendants that plaintiff did not make out a submissible case for the jury — "In determining the extent of preparation which a business visitor is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance. * * *" Vol. II, Restatement of the Law of Torts, § 343, Comment (e), p. 943; Ilgenfritz v. Missouri Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369. Defendants, occupants of a building and proprietors of a store, owed plaintiff, a business invitee, the duty to exercise ordinary care to have the premises in a reasonably safe condition. Defendants were not insurers of the safety of plaintiff. Ilgenfritz v. Missouri Power & Light Co., supra; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278.

It is, of course, necessary for an owner or an occupant of a building to install some means to accommodate invitees in their passage up (or down) grade between the exterior of the occupied building and the floor (and between the floor levels), and on a floor level of the building. An owner, or occupant, who constructs or maintains a means (and of the surface or surface dressing), not inherently dangerous, as usually or commonly employed, such as a step, or steps, or a ramp, or an ordinary floor, is not to be held negligent merely because of the means he has installed in the solution of his problem. He may be held to be negligent only if he has failed to exercise ordinary care in the construction or maintenance of his installation.

This broad obvious generalization is gleaned from the language of the opinions of the following cases, which include those cited by defendants-respondents involving the relation of occupants of land and business invitees. Ilgenfritz v. Missouri Power & Light Co., supra; Paubel v. Hitz, supra; Vogt v. Wurmb, supra; Mullen v. Sensenbrenner Merc. Co., Mo.Sup., 260 S.W. 982, 33 A.L.R. 176; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Cates v. Evans, Mo.App., 142 S.W.2d 654; Achter v. Sears, Roebuck & Co., 232 Mo.App. 915, 105 S.W.2d 959; Stein v. Buckingham Realty Co., Mo.App., 60 S.W.2d 712. But it should not be further generalized by saying that the construction or maintenance of all of the means or instrumentalities of passage considered in these cases would not (or would) have been held to have been actionable negligence if the installations were constructed or maintained under the same or different physical surroundings in buildings of the same or different use or extent of use, and if any dangerous or unsafe condition of the installations considered in these cases had not been obvious, or known to the invitees-plaintiffs. Nor should it be generalized, from these cases, that the construction or maintenance of the installations considered would not (or would) have been held actionable negligence if the relation of the parties, plaintiffs and defendants, had been different — that is, for example, master and servant; or landlord and tenant; or if passage over a sidewalk or other public thoroughfare had been involved. See Paubel v. Hitz, supra.

In reviewing our case upon its facts, and in endeavoring to analyze the cases cited, we must have a regard for the distinction between negligence in its colloquial meaning, the want of ordinary care; and actionable negligence, negligence which breaches a duty owed the person injured. Precisely, what duty did defendants owe plaintiff?

"* * * The (this) court (in Vogt v. Wurmb, supra, citing cases) recognized the rule announced in Carleton v. Franconia I. & S. Co., 99 Mass. 216, 217, and stated in Bennett v. Louisville & N. Railroad Co., 102 U.S. 577, 580, 26 L.Ed. 235, 236, as follows: `The owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons — they using due care — for injuries occasioned by the unsafe condition of the...