Clifford v. F. W. Woolworth Co.
| Decision Date | 03 March 1947 |
| Docket Number | 20835 |
| Citation | 201 S.W.2d 416 |
| Parties | CLIFFORD v. F. W. WOOLWORTH CO. et al |
| Court | Kansas Court of Appeals |
'Not to be published in State Reports'.
Mosman Rogers, Bell & Conrad, of Kansas City, for appellants.
Trusty & Pugh and Guy W. Green, Jr., all of Kansas City, and A. B Taylor, of Independence, for respondent.
Respondent as plaintiff below, brought an action against the appellants for personal injuries alleged to have been sustained in a fall in the store of defendant company at Independence, Missouri, on February 10, 1944. Defendant Johnson was the manager in charge. Plaintiff obtained verdict and judgment in the sum of $ 5000, from which defendants have appealed.
Plaintiff's petition, in substance, alleged that on February 10, 1944, she entered defendants' store, and while walking on the floor just inside the door in the regularly traveled aisle way she was caused by the negligence of the defendants to fall violently and to be injured as set forth.
Plaintiff pleaded separately two assignments of negligence, (1) that defendants at the time negligently caused and allowed a muddy, slushy, slippery substance to be and remain on the floor and in such quantity and condition as to make the same not reasonably safe, and that they knew, or by the exercise of ordinary care could have known, of the condition in time thereafter, by the exercise of ordinary care, to have made the same reasonably safe, or to have warned plaintiff of the danger, or to have removed such substances, and (2) that the floor was not only wet and slick from the muddy and slippery substance, but the defendants had negligently caused and allowed small pieces of material on top of the slippery substance referred to, and which would roll and slide under the foot or heel of the person stepping thereon, thereby rendering said place not reasonably safe when plaintiff stepped thereon, and caused her foot to roll and slide, and caused her to fall. Plaintiff did not submit the second assignment of negligence to the jury.
The petition alleged consequent suffering, impairment of capacity to work, loss of wages in the sum of $ 5000, permanency of the injuries, and prayed for $ 20,000 damages.
Defendants filed their joint and separate answer, admitting the ownership and operation of the store, as alleged, and the employment of the defendant Johnson as the manager thereof, and denied each and every other allegation in the petition. The answer further alleged contributory negligence.
In plaintiff's behalf her daughters and others testified that prior to the accident the plaintiff was employed at the Remington Arms Plant near Lake City; that she had been employed as a cook on several occasions; at one time was a matron of the Girls' Home, and also was employed by a corset company. Six months prior to the accident plaintiff had been operated on, but had been back to her employment about three months since the operation and apparently 'got around' without any trouble. Following the accident plaintiff was unable to get out of bed and someone had to cook for her and give her medicines. Plaintiff also had to wear a back support while in bed. The daughters, together with neighbors, took care of plaintiff. It was ten or eleven weeks before plaintiff got out of bed. For the last few months plaintiff was up part of the time and in bed part of the time, and not able to do any work 'to amount to anything.' Plaintiff has earned no income since the accident. For some time after the accident plaintiff's movements were slower and lately plaintiff has stayed in the yard and garden a great part of the time. For a few weeks after the fall, a doctor was in attendance.
Plaintiff, in her testimony, verified substantially the other testimony as to her prior employment and operation. She stated that on the date of the accident she and one of her daughters went to the defendants' store about 4:30 in the afternoon. There were patches of thin ice all over the pavements and there was a little snow, but none in the main part of the town. Plaintiff and her daughter had held onto each other to keep from falling while walking on the sidewalks. Plaintiff's shoes were in good condition and had medium, rubber capped heels. She did not wear anything over the shoes and there was nothing sticking to her shoes because the ice was glassy. After plaintiff had taken three or four steps inside the door her feet 'just went from under me and I fell on my back,' her right foot, going out first, 'just skidded and rolled,' it went 'from under me, fast; it went very quick.' She fell on the lower part of her back. She was helped up and she noticed mud on her clothes and gloves, and she felt like her whole back was wet. Her gloves were sticky and muddy, and so was her purse. Plaintiff testified that when she entered the store the lights were on so far as she knew. The general appearance of the floor was dark. She noticed nothing that suggested that there was anything on the floor. Her daughter washed the plaintiff's hands and purse. The material washed off was 'dirt, mud, rough stuff.' Mr. Johnson then told her that they had put sand on the floor. Whatever it was, it 'rolled and slid with me'. She felt that she had 'struck something' which skidded with her all at once and caused her feet to go out from under her. The substance was dark and wet, but not 'runny.'
Plaintiff was taken in a taxi to Dr. Green's office. There she was taped and x-rays were taken. She was suffering intense pain. She was then taken to her home and put to bed. Sedatives were given by her daughter as ordered by the doctor. Plaintiff remained in bed for ten weeks without getting up. During that time the suffering in her back continued. Another physician later took charge of her who attended her at her home. The tape was removed and a special support was ordered for the plaintiff, which she wore thereafter. The doctor continued to call every week until plaintiff was able to get to his office, which she did two or three times a week. During the time of her confinement she was unable to go to and from the rest room and was cared for by her daughters and neighbors. After her confinement she had to move very carefully; her resistance was much reduced, and her back continued to hurt and is still very tender. She is still weak and still is required to wear a support. She has not been employed since the fall. She feeds the chickens and stays outside as much as possible and does light work in the garden. She can also knit and sew for short periods. Her age is 48. At the time of her operation prior to the accident, she had not started her menopause but as a part of the operation her uterus had been removed. She testified that her first doctor bill was $ 175, but did not know what her second one would be. Prior to her fall she was averaging $ 50 a week on her job and has earned nothing since.
On cross-examination plaintiff testified that she had been in the store many times before. As she entered on the day of her fall she preceded her daughter but did not see the tracks of other customers who had come in and 'I wasn't watching for tracks; all I noticed it was dark'; that 'I wasn't paying attention; I was just going in ahead of Mary'; that 'I was talking; I wasn't watching; I just spoke to Mary as I went in the door; we were talking all the way; I went in just ahead of her there'; that she did not see the tracks of other people but 'I saw darkness, and I had my mind on what I was going after and I knew where I was going.' Her deposition was referred to wherein she was asked: Again in her deposition she had testified: On the stand she said there was no tracking in and out at the time she entered the store because it was not then damp and wet, but was dry and hard, and that the tracks could have been made a few hours before when it was muddy and slippery. She said it had been muddy and slippery outdoors until about 4:30 o'clock, when she entered the building. She did not see any sand on the floor, but felt it, and knew it was there.
On redirect examination plaintiff said that she had seen tracks coming in from the door, but did not take particular notice except that it was dark and wet; that she did not discover this condition until she fell; that she discovered that the floor was damp and wet when she was picked up and found her clothes in a wet condition. In her deposition the plaintiff had been asked to describe the tracks that she had seen, and stated that they were just dark tracks, 'where you see traffic coming in.' She further stated in her deposition to a question: Again she was asked when she discovered the muddy condition of the floor and she said it was after she had fallen and while she was lying on the floor. Her back felt wet and her clothes were damp.
A woman friend of the plaintiff's testified that she was in the store at the time of the accident; that the sidewalk in front of the store was icy but dry. When she first saw plaintiff plaintiff was lying on her back on the floor and she saw others lifting her up. Witness helped brush plaintiff's coat and it was wet, and a sort of fine, gritty sand or other substance was on the coat. She brushed the coat with her...
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