Capstick v. T. M. Sayman Products Co.

Decision Date31 December 1930
Docket Number29228
Citation34 S.W.2d 480,327 Mo. 1
PartiesBerenice Capstick, a Minor, by Matilda Capstick, Her Next Friend, v. T. M. Sayman Products Company, Appellant
CourtMissouri Supreme Court

Appellant's Motion for Rehearing Overruled December 31 1930.

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.


Jones, Hocker, Sullivan & Angert, W. A. McCaleb and Sid C. Roach for appellant.

(1) The court erred in refusing to give and read to the jury defendant's demurrer to the evidence, because: (a) The condition of the stairway on defendant's premises, as shown by the evidence, did not reveal any defect sufficient to support a finding of negligence on the part of the defendant. Myers v. Strauss, 264 S.W. 801; Cluett v. Elec. L. & P. Co., 220 S.W. 865; Halloran v. Pullman Co., 148 Mo.App. 247; Vogt v. Wurmb, 300 S.W. 278; Mullen v. Sensenbrenner, 260 S.W. 982; Main v. Lehman, 294 Mo. 579; Peck v. Amusement Co., 195 S.W. 1033; Koenig v. Heitz, 282 S.W. 107; Chilberg v. Furniture Co., 34 L. R. A. (N. S.) 1079; Reeves v. 14th Street Store, 96 N.Y.S. 448; McIntire v. White, 50 N.E. 524; Weller v. Gas Co., 198 N.Y. 98; Tryon v. Chalmers, 200 N.Y.S. 362, 148 N.E. 713; Abbott v. Country Club, 207 N.Y.S. 183; Hogan v. Metropolitan Bldg., 206 P. 959; Moses v. Motor Co., 131 N.W. 115; Chapman v. Clothier, 118 A. 356. (b) The condition of the steps as detailed in the evidence was not such as would have led a reasonably prudent man, exercising only ordinary care, to anticipate that injury would result from their use. Cluett v. Electric L. & P. Co., 220 S.W. 865; Myers v. Strauss, 264 S.W. 801; Halloran v. Pullman Co., 148 Mo.App. 247; Tryon v. Chalmers, 200 N.Y.S. 362, 148 N.E. 713; Abbott v. Country Club, 207 N.Y.S. 183; Strode v. Box Co., 124 Mo.App. 511; American Brewing Assn. v. Talbott, 141 Mo. 674. (c) The evidence does not establish any connection between the alleged defects in the stairway or lack of light with the cause of plaintiff's fall. Peck v. Amusement Co., 195 S.W. 1033. (d) If it be held that the evidence was sufficient to warrant a finding of negligence because of alleged defects in the stairway, or lack of light, the plaintiff is not entitled to recover herein, because she was bound to exercise, in her own behalf, the same degree of care which defendant owed her with respect to all conditions of which she knew, or should have known. Consequently, if the center of the steps was so worn and irregular as to create a dangerous condition, plaintiff is barred from recovery for adopting a hazardous method of descending the stairs when a safe method was readily accessible to her. Hunter v. Candy Co., 307 Mo. 656; Van Bibber v. Swift & Co., 286 Mo. 335; Hurst v. Railroad Co., 163 Mo. 309; Moore v. Railroad Co., 146 Mo. 572. (2) The court erred in permitting witnesses for defendant to testify that Mason treads could have been placed on defendant's stairway in a comparatively short time and at a small expense, because: (a) The master is not required to render the servant's place of work absolutely safe, or to acquire and place on his premises for the use of the servant the newest, best or safest appliances. Mullen v. Sensenbrenner, 260 S.W. 801; State ex rel. Const. Co. v. Trimble, 310 Mo. 248; Lowe v. Railroad, 265 Mo. 587; Chrismer v. Bell Tel. Co., 194 Mo. 189; Anderson v. Box Co., 103 Mo. 382; Shinners v. Mullins, 136 Mo.App. 298. (b) It is not competent to prove negligence by proving that the person charged therewith failed to follow the usual method or custom, and, therefore, proof that a master did not follow a custom in furnishing appliances or places for his servants to use or work in is no proof of negligence, and, therefore, whether Mason treads were in usual and customary use or not, evidence to prove that fact was not competent on the issue of negligence. Glenn v. Railway, 167 Mo.App. 109; Cody v. Lusk, 187 Mo.App. 340. (c) The issue herein was not whether the stairway involved could have been made safer, but whether in its existing condition, it was or was not reasonably safe. (d) The admission of evidence to the effect that Mason treads could have been placed in the steps was highly prejudicial because the jury must have inferred from the fact that the court admitted it, that he considered the stairway in its existing condition as not reasonably safe. (3) The court erred in giving and reading to the jury plaintiff's Instruction 1, because: (a) The only respect in which the instruction requires a finding of negligence is the failure of defendant to furnish additional light and to correct the irregularities in the steps. Before any question of repair could arise it was necessary for the jury to find defendant guilty of negligence in maintaining the stairway and light in their existing condition. (b) The instruction is confusing and misleading in that it requires the jury to find negligence only in the failure of defendant to correct the conditions and does not require a finding that a failure to repair was the cause of the accident. The instruction required the jury to find that the cause of the accident was the alleged defective condition of the stairway and the lack of light. Thus, it required a finding of negligence in one respect, and then required the jury to find that the accident was due to another cause, concerning which the instruction did not require a finding of negligence. (c) The instruction does not directly or by fair inference require a finding that defendant, in the exercise of ordinary care, could have anticipated that injury would result from the condition of the stairway. (d) The latter part of the instruction assumes that the stairway was not reasonably safe. (4) The damages are excessive. Fitzsimmons v. Ry. Co., 294 Mo. 551; Foster v. Davis, 252 S.W. 433; Thompson v. Smith, 253 S.W. 1023; Miller v. Schaff, 228 S.W. 488; Stahl v. Ry. Co., 287 S.W. 628; Lissenden v. Railroad, 238 Mo. 247; Yost v. Railroad, 245 Mo. 219; Greenwell v. Railroad, 224 S.W. 404.

Igoe, Carroll, Higgs & Keefe and Joseph A. Lennon for respondent.

(1) Appelant's theory that the evidence (a) is insufficient to support a finding of negligence and (b) shows, as a matter of law, that plaintiff was contributorily negligent, is erroneous, because: (a) The principal predicates of its theory do not allow due effect to evidence favoring plaintiff's case, and are based, in part, upon evidence offered by the defendant, contrary to the rule that a demurrer to the evidence must be tested by the strength of plaintiff's evidence, aided by all reasonable inferences to be drawn therefrom and unaffected by countervailing inferences or by defendant's evidence tending against the right of recovery. Hall v. Manufacturers Coal, etc Co., 260 Mo. 351; Busby v. Telephone Co. (Mo. Sup.), 287 S.W. 134. (b) Considering the dangerous condition shown by the evidence, there is ample warrant for the finding that the stairway was not reasonably safe, due to defects which the defendant, in the exercise of due care, should have corrected. Busby v. Telephone Co. (Mo. Sup.), 287 S.W. 434; Oakley v. Richards, 275 Mo. 266, 204 S.W. 504; Nephler v. Woodward, 200 Mo. 179; Little v. Holyoke, 177 Mass. 116; Poppleson v. Pantages, etc., Co., 220 N.E. 418. (c) The jury was required to find, before returning a verdict for the plaintiff, not only that the stairway was slick, irregular and worn, but that the light was inadequate as well, and thus its finding of unreasonable danger in the situation is based upon the fact that these defects were coexistent and coefficient elements of the resulting hazards. See Instruction No. 1. In fact, however, evidence of the physical conditions, with respect to the stairway itself, sufficiently showed that it was not reasonably safe, even without evidence of the added hazard due to the inadequacy of the light. Wendt v. Zittlosen, 229 S.W. 1107; Bennett v. Jordan Marsh Co., 216 Mass. 550, 104 N.E. 479; Majestic Theater Co. v. Lutz (Ky.), 275 S.W. 16. (d) The causal connection between the hazardous condition of the stairway and plaintiff's fall is demonstrated by her testimony, which shows that, due to inability to see clearly the outline of the step below, she placed her foot too near the edge of it, and that her foot slid on the surface of the tread and over the edge, thus causing her to fall. Oakley v. Richards, 275 Mo. 266, 204 S.W. 504; Strickland v. Woolworth, 143 Mo.App. 528. (e) Plaintiff could not be held guilty of contributory negligence as a matter of law merely because she used the steps, knowing that they were defective and inadequately lighted, unless from the evidence it could be said that the danger thereof was so appalling and immediately threatening that a reasonably prudent person would not have attempted to walk upon them at all, and there is no warrant in the evidence for such a conclusion. Edmonson v. Hotels Statler, 306 Mo. 216, 267 S.W. 616; Eaton v. Wallace, 287 S.W. 61. Appellant's contentions that plaintiff failed to use the hand rail and that she could have avoided the shadow before her by walking more to the side of the stairway are wholly without basis in the evidence. (2) The court did not err in admitting evidence of (a) the custom of using Mason treads, (b) the fact that they were entirely practicable for steps such as those in defendant's building, and (c) that the trouble and expense of installing them was slight, because: (a) while the master's responsibility is not to be tested, by the question of whether he did or did not use the "newest, best or safest appliances," the facts that by using a practicable and readily obtainable safeguard he might have eliminated the hazard which resulted in the injury, and that in similar situations such safeguards are customarily used, are...

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