Cameron v. Small

• Decision Date: 08 November 1943
• Docket Number: No. 20237.,20237.
• Citation: 175 S.W.2d 177
• Parties: CAMERON v. SMALL et al.
• Court: Missouri Court of Appeals

175 S.W.2d 177

CAMERON v. SMALL et al.

No. 20237.

Kansas City Court of Appeals. Missouri.

November 8, 1943.

Appeal from Circuit Court, Jackson County; John F. Cook, Judge.

Action by Mary Cameron against John Small and another, doing business as Parkview Pharmacies, to recover for injuries sustained by plaintiff when she slipped and fell in an entryway of defendants' drug store. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Mosman, Rogers & Bell, of Kansas City, for appellants.

Cyril G. Baucke, of Kansas City, for respondent.

BLAND, Judge.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff when she slipped and fell in the entryway of defendants' drug store which is located at the northwest corner of Independence Avenue and Prospect in Kansas City, Missouri. The cause was tried in the Circuit Court of Jackson County, resulting in a verdict for plaintiff in the sum of $2,000, upon which judgment was entered and defendants perfected their appeal to this court.

Defendants operate a drug store located at the northwest corner of Independence Avenue and Prospect. There are two entrances to the store, one at the southeast corner which is not involved herein and need not be further described. The other entrance is on the south side of the store and leads directly out to the sidewalk on the north side of Independence Avenue. The plaintiff fell as she was going out of the south door. There is little dispute about the physical structure of the entranceway referred to in the testimony as a ramp. The door opening is 3 feet 6 inches but the full opening between the outside jambs at the door opening "over the bulkhead" is 4 feet. The ramp then widens to about 6 feet 3 inches at the building line and the edge of the sidewalk, and has a gradual decline or slope of 6 inches in that distance. It is 3 feet 6 inches from the door to the sidewalk. The vestibule is flanked by show windows. The ramp is of concrete construction but does not connect with the sidewalk on a level. There is a step down of 4¾th inches at the east edge and 5½ inches at the west edge. This difference is due to the fact that the public sidewalk slopes to the west. Defendants, as tenants, had operated this store for about 13 or 14 years, and there had been no change or repair in this entryway during that time. It had been much used by customers coming into and leaving their store. It is not clear from the evidence just when the ramp was constructed. Due to ordinary wear and tear by usage there is a valley measuring ¼ of an inch plus in depth through the middle of the ramp where it has been traveled. The edges of the ramp against the windowsills are of a rougher texture and are not worn by usage.

There was a screened door at this south entranceway which opened outward. On the day in question the weather was rather rainy and misty, the sidewalks and all exposed space, including this ramp, were wet. Plaintiff's evidence showed that when the worn surface of the ramp became wet, the slipperiness was accentuated. There was no evidence of or claim that the surface of the ramp had any mud, oil or foreign substance on it at the time of the fall.

Plaintiff testified that she and her husband entered the store at the southeast door and made certain purchases which were to be later delivered. Her husband went out of the south door and was waiting for her near that entrance; that she had never used that doorway before and was wholly unfamiliar with it. She describes the occurrence substantially as follows: "You see, the way I remember, I was coming out and I had my hand, just opened the screen door and still had my hand kind of on the door and my foot slipped and * * * I fell * * *. My foot slipped right on that slanting concrete * * * I was on the outside, just on the middle, still had hold of the door. * * *

"Q. You don't know what made you fall, do you? A. I know I slipped.

"Q. You don't know what made you fall? A. I know, I don't know, I slipped and fell. That is all. * * *

"Q. And you don't know what, if anything, you slipped on, do you? A. Well, I don't know unless it would be just that damp water, kind of like mist, it was kind of damp there. * * * I didn't look at the entrance. I just opened the door and started to walk out. That is all I know, and I fell. I can't explain it.

"Q. And you did that without looking at the entrance, that is true, isn't it? A. I guess it is. * * *

"Q. That was the 10th day of June. A. Yes, sir.

"Q. Broad day light, wasn't it? A. Yes sir. * * *

"Q. There was not a thing there to prevent you from just looking there and seeing the entrance way just like you look and see that floor in this court room was there? A. No, sir. * * *

"Q. I want you to tell these gentlemen just how you were walking and which way you were looking when you walked out this door and stepped into this vestibule and slipped. A. Well, I just walked right on out the door, didn't see — wasn't looking particularly at anything, just kind of just went on out, opened the door and walked out when I slipped and fell."

She had been in the store numerous times but had never used this entryway.

Her husband testified that he went out the door first and was standing on the sidewalk waiting for her and saw her fall. He said that she opened the screen door and came out and her feet went from under her; that the place where she fell was "wet, kind of wet. It was just a bare cement floor". He said there was a mark on the cement that looked like a slip mark made by her heel.

Over the objection of the defendants, the court permitted two witnesses to testify that they had slipped on this ramp. Witness Hankins testified that on two or three occasions going out of the store, he had slipped on this ramp when it was wet. He said that he had seen a lady slip on the ramp just a few days before the trial, when it was wet. He also testified that it was a concrete entrance like the public sidewalk and that he had seen other people slip at various places on the streets in Kansas City.

"Q. Do you know of any place on the public sidewalks, a place outside of this, where you have slipped several times under conditions like this? A. No, sir."

Witness Clark testified that he had slipped and fallen on this ramp as he stepped out of the door when it was wet and drizzling rain.

Mr. Malcolm Lowry testified on behalf of the plaintiff as an experienced civil engineer and described the physical construction of the vestibule very much as other witnesses. He testified: "I noticed on the ramp that the edges of the ramp against the windowsills was of a rough texture more or less of what you might call slight abrasive. 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. * * * Well, as soon as you begin to increase the slope of a plane after you go from vertical to horizontal you begin to make it much more easy to be — to become smoothed up. When that happens, any moisture after it has been applied acts as somewhat of a lubricant and that water has a tendency to make the slipperiness more accentuated." (Italics ours.) The witness further testified that he was familiar with the custom and practice in vogue in this community generally with respect to treating and handling situations of the kind presented by this ramp and said the custom and practice was "to treat the surface with some roughening material or leave the surface rough when it is poured.

"Q. What is the purpose of that? A. That is to make the surface abrasive and not slippery.

"Q. And on this place out there did you find any evidence of any covering or abrasive or anything used for that purpose? A. There was on the sides of the ramp against the bulkhead; the surface had been left rough with a trowel. I found no definite admix of any adhesive or abrasive materials.

"Q. And you did not even find that in the center portion? A. No, sir."

On cross-examination the witness testified that there are many doorways in Kansas City business houses with a slope as great as 10%. "Well, I would say some. I am not familiar with all of them". He further testified that as you walk over a ramp you do not notice any difference in the incline. "Not as you walk, no, if your mind isn't on it, if you are not thinking about it". He further testified that the roughened part of the pavement of the ramp came only "a little ways out from it" (the bulkhead) where there is no traffic on the ramp; that the pavement of the ramp was not even slightly abrasive in the center where the people walked; that at this point the material was worn away. "It becomes smooth because the material is gone and soft parts are left and the material therefore smoothens up on its surface".

The defendants produced Mr. Thompson, the highway engineer of Jackson County, a man of many years' experience as a civil engineer, general contractor in the construction of roads, streets, doorways, etc. He testified concerning the condition of this doorway and said the grade of the slope of the ramp was approximately 15% and that the entrance is constructed in the ordinary and usual manner of construction of such entranceways in this community and is considered reasonable and practical construction for doorways and entrances.

He further testified that there are several methods of using abrasives on concrete walks. "You can sprinkle carborundum or any abrasives in the surface of the concrete when you finish it, or you can embed carborundum in strips.

"Q. What is the purpose of that? A. It is a twofold purpose. One of them is to keep the concrete or whatever material you are using from wearing thin, or wearing out; and the other is the non-slip feature.

"Q. To keep people from slipping? A. That is right.

"Q. And you have seen that done in a great many instances? A. Yes. * * *

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