Campbell v. FW Woolworth Co.

• Decision Date: 31 January 1941
• Docket Number: No. 11672.,11672.
• Citation: 117 F.2d 152
• Parties: CAMPBELL v. F. W. WOOLWORTH & CO.
• Court: U.S. Court of Appeals — Eighth Circuit

117 F.2d 152 (1941)

CAMPBELL v. F. W. WOOLWORTH & CO.

No. 11672.

Circuit Court of Appeals, Eighth Circuit.

January 31, 1941.

Franklin E. Reagan, of St. Louis, Mo. (Harry G. Waltner, Jr., of Kansas City, Mo., on the brief), for appellant.

Clay C. Rogers, of Kansas City, Mo. (O. C. Mosman and Louis R. Weiss, both of Kansas City, Mo., on the brief), for appellee.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

This is an action for damages for personal injuries sustained by plaintiff in falling upon the floor of an entryway to defendant's retail store in Jefferson City, Missouri. The case was tried without a jury. At the close of plaintiff's testimony the district court sustained defendant's motion for judgment in its favor. This appeal followed.

In her amended petition the plaintiff alleged that the injury sustained by her was the direct result of the negligence of the defendant in inviting her to use the passageway to the store when the same was slippery and slick without warning her of the danger; and that the slippery substance causing the accident had been on the passageway for so long a time that the defendant knew or could have known of its presence in time to warn her or to have removed it.

The plaintiff testified that she entered the defendant's store, located on the main business street of the city, at approximately 12 o'clock, noon, on March 31, 1938. She made a small purchase, remaining in the store five to seven minutes, and then walked out at the same entrance that she had used in entering. This entrance is equipped with swinging glass-panelled double doors which are inset a few feet from the sidewalk. Leading from these doors to the sidewalk is a tile floor or entryway flanked on either side by show windows. As the plaintiff stepped through the swinging doors on her way out of the store her right foot slipped on a brown spot on the tile floor of the entryway. After she fell her foot extended approximately to within six inches of the sidewalk. The only mark on the floor was the streak made by her foot in slipping.

The plaintiff stated that in entering and leaving the store she looked straight ahead so as not to run into other customers and that she did not see the slippery spot until after the fall. She described it as a brown spot of tobacco juice about the size of a half-dollar, dry around the outer edge and moist in the center. Elaborating on this description she stated that the outside was darker than the center, "like it had dried."

After the accident the plaintiff talked with the defendant's store manager. She testified that: "He said something about it should have been cleaned up, that there evidently was negligence on somebody's part that it wasn't cleaned up. That is all that he said."

The plaintiff's contentions on appeal may all be decided by answering two questions:

1. Is the evidence such as to compel a finding that the defendant had actual notice of the slippery spot on the entryway in time so that in the exercise of ordinary care the cause of the accident should have been removed or the plaintiff warned of its existence?

2. Does the evidence compel a finding that the slippery spot had been present in the entryway a sufficiently long time prior to the accident to impart constructive notice of its existence to the defendant and to afford time for it to be remedied?

The trial court accepted the plaintiff's testimony as true but held that there was no evidence that the defendant had actual knowledge of any dangerous condition in the entryway; and the court refused to find that the evidence indicated that the slippery substance had remained in the entryway a sufficient length of time to impart constructive notice of its presence to the defendant.

The plaintiff contends that the court erred in refusing to give her testimony the benefit of inferences compelled by the law of the state of Missouri which is here controlling.

1. On the question of actual knowledge, the plaintiff urges that the statement of the defendant's store manager indicates that he knew of the condition of the entryway sometime before her fall and that the trial court should have drawn this inference. Such an inference clearly would have been unwarranted and the cases cited by plaintiff do not sustain her contention. Testimony of explicit statements by a defendant's employees of prior knowledge of a dangerous floor condition resulting in an accident has been held of evidentiary value. Farrell v. Kroger Grocer & Baking Co., Mo.App., 71 S.W.2d 1076; Garnett v. S. S. Kresge Co., Mo.App., 85 S.W.2d 157. But no decision is cited in which a speculative remark of an employee that someone evidently had been negligent in failing to remove a dangerous condition on the premises has been held to support an inference of his prior knowledge of its existence.

In Varner v. Kroger Grocer & Baking Co., Mo.App., 75 S.W.2d 585, 586, the plaintiff slipped on a banana which had lain on the floor of defendant's store some fifteen minutes. There was no direct evidence of actual knowledge of its presence and the...