Cluett v. Union Electric Light & Power Co.

• Citation: 205 S.W. 72
• Decision Date: 04 June 1918
• Docket Number: No. 15136.,15136.
• Court: Missouri Court of Appeals
• Parties: CLUETT v. UNION ELECTRIC LIGHT & POWER CO.

205 S.W. 72

CLUETT v. UNION ELECTRIC LIGHT & POWER CO.

No. 15136.

St. Louis Court of Appeals. Missouri.

Argued and Submitted May 8, 1918.

Opinion filed June 4, 1918.

Dissenting Opinion, July 24, 1918.

Appeal from St. Louis Circuit Court; Thos. J. Anderson, Judge.

"Not to be officially published."

Action by Laura E. Cluett against the Union Electric Light & Power Company for personal injuries. From a judgment for plaintiff, and the denial of a new trial, defendant appeals. Reversed, and case certified to Supreme Court on conclusion of dissenting judge that decision conflicts with decisions of Supreme Court.

Schnurmacher & Rassieur and W. M. Bezel, all of St. Louis, for appellant. Hall & Dame, of St. Louis, for respondent.

REYNOLDS, P. J.

Action for damages for injuries sustained by plaintiff while walking across the floor of defendant's office, she being there for the purpose of paying a bill for use of electricity.

It is charged in the petition that plaintiff entered the defendant's office from Twelfth street; that at the same time and place, the floor of the office was very wet and soapy and slippery; that defendant's employé, a janitor or porter, was at that time engaged in cleaning or washing the floor; that just after plaintiff had entered the office and proceeded a few feet from the door on the wet and slippery floor, where she was compelled to walk in passing into and through the office, and while she was exercising ordinary care for her own safety, on account of, and as a direct and proximate result of the negligence of the defendant, its servants, etc., in having caused the floor at that time to be wet and soapy and slippery, and not reasonably safe for plaintiff and for persons entering the office to walk upon, and in failing to warn plaintiff thereof, she fell and sustained severe injuries, describing them. Claiming that she has suffered great pain and anguish of body and mind and will continue to so suffer, and has expended and incurred obligations for the payment of large sums for medical treatment, plaintiff claims judgment in the sum of $5,000.

The answer, after a general denial, pleads that plaintiff was guilty of contributory negligence in that she saw or, by the exercise of ordinary care, might have seen that part of the floor was being washed up and was then temporarily wet and soapy, and might, by the exercise of ordinary care, have avoided walking upon that part which was wet and soapy, and might have waited until it had been mopped up, and might, by the exercise of ordinary care, have even walked safely on the wet floor, but that she failed to exercise such precaution for her own safety, and the failure so to do contributed directly to her fall and to her injuries, if any.

There was a reply to this, and on a trial before the court and jury a verdict was returned for plaintiff in the sum of $2,500, judgment following. Plaintiff thereupon filed a motion for new trial, averring ordinary grounds, among others, "because the court erred in giving the instructions given for the plaintiff." One of these purported to cover the whole case, the other was as to the measure of damages. Defendant also filed a supplemental motion for new trial and affidavits in support of it, claiming newly discovered evidence. Both these motions were overruled, defendant excepting and duly appealing.

The testimony of plaintiff, in brief, was to the effect, that entering defendant's office, for the purpose of going to a counter there and paying her bill, she saw a porter or janitor mopping up the floor, using a mop and water and soap, or soap powder, for that purpose. The floor was covered with heavy linoleum, which had been in use for about a year. The janitor was working rather in the center of the floor, and plaintiff, avoiding what appeared to her to be the wet part, was walking along a part which she thought was dry but which she says proved to be slippery, and slipped and fell, falling onto the wet part of the floor. She found that her clothing, from her neck to the bottom of her skirt, on her left side, on which side she had fallen, was covered with a wet, soapy substance. She was picked up and continued on to the counter, paid her bill, walked out, went to another building, the office of a gas company, paid her bill there, got on a street car to go home and discovered that her ankle had been badly hurt and that she was suffering great pain. When she reached her point of debarkation from the car, she walked home, suffering great pain in her ankle and, a friend assisting her, on taking off her shoe, found the ankle was swollen and badly sprained. She was treated for it for quite a length of time, and an X-ray being made of the limb, there appeared to be a break of one of the small bones, as some witnesses testify, although the person who took the X-ray denied that this was a breakage of the bone and said it was a small bone that was in place. At any rate, down to the time of trial plaintiff claimed that she was still suffering from her injuries.

There was testimony in the case to the effect that on either side of the part of the floor which the porter was mopping, there were dry, or apparently dry, parts of the floor, from 3 to 5 feet wide, and on one end a perforated rubber mat. While this was the testimony from defendant's witnesses, plaintiff practically admitted it, and said that while she thought the part of the floor upon which she walked to avoid the wet portion was dry, she found that it was slippery, but that she had not discovered that until she actually slipped; concluded it was slippery because she had slipped on it.

The assignments of error are to the refusal of the court to sustain demurrers to the evidence, it being argued that it affirmatively appears that defendant could not reasonably anticipate any accident to plaintiff from washing part of the floor, and therefore there was neither wrong nor liability, and that it affirmatively appeared that if it was negligence for defendant to wash a part of its office floor as it did and when it did, that plaintiff was guilty of contributory negligence in walking on that part of the floor.

The second assignment is to the giving of the first instruction at the instance of plaintiff, it being claimed that the instruction is without evidence to support it and is broader than the pleadings.

It is also assigned that the verdict is so obviously against the weight of the evidence and that the court erred in refusing to grant a new trial for that reason as also on the ground of newly discovered evidence.

At the outset it is well to bear in mind that this is an action by an invitee against the invitor, and is not a case arising on the relative duties and obligations of the employer and employé. Plaintiff here was an invitee and the principle to be here applied is well stated by Judge Nortoni, then speaking for our court, in Shaw v. Goldman, 116 Mo. App. 332, loc. cit. 338, 92 S. W. 165, where it is said that it is well settled in numerous adjudications:

"That where premises are in the occupancy and under the control of a party and used by him as a place for the transaction of business, and persons are either expressly or impliedly invited thereto to trade, the proprietor owes to those entering therein or thereupon In response to such invitation, the duty of ordinary care to keep said premises in a condition reasonably safe for the use of such parties so invited in the transaction of their business; and if the premises are not in such reasonably safe condition, it is the duty of the proprietor to warn the customer of such unsafe condition if he knows of it and it is unknown to the customer."

A multitude of cases are cited in support of this really elemental proposition. We followed it, quoting from it to some extent, in Behre v. Hemp & Co., not to be officially reported, but see 191 S. W. 1038. See also 21 Am. & Eng. Ency. of Law (2d Ed.) p. 471, par. 4.

Learned counsel for appellant quotes from the decision of our court in Halloran v. Pullman Co., 148 Mo. App. 243, 127 S. W. 946, and cases there cited. We dismiss that case from consideration here because it was a case between an employer and employé and turned upon the duty of the employer to furnish a reasonably safe place to work; somewhat akin, it is trite, to the relation between invitor and invitee but not sufficiently parallel in its facts to make it here applicable.

Where injuries should not reasonably have been apprehended, no duty is owing. 21 Am. & Eng. Ency. of Law (2d Ed.) p. 471, par. 3.

"Though a party is on the defendant's premises by invitation and so has a duty owing to him by the defendant, the latter will not be deemed negligent in failing to provide against circumstances which could not have been foreseen." 21 Am. & Eng. Ency. of Law (2d Ed.) p. 472, par. 4a.

In O'Donnell v. Patton, 117 Mo. 13, 22 S. W. 903, the duty and liability of the proprietor of business premises is stated to be the exercise of reasonable care to keep the premises in a condition reasonably safe for the use of customers in the transaction of business in which he was engaged under such invitation, or to warn him of dangers known to him and unknown to plaintiff. Carleton v. Franconia Iron & Steel Co., 99 Mass. 216, and Beach on Contributory Negligence, § 51, are cited in support of this proposition. So also is the case of Caniff v. Navigation Co., 66 Mich. 638, 33 N. W. 744, 11 Am. St. Rep. 541.

Carleton v. Franconia Iron & Steel Co., 119 Mass. 216, referred to in O'Donnell v. Patton, supra, is a case of a hidden obstruction. under the water along the length of a wharf, plaintiff using due care at the time, and on the invitation of defendant, sailing his schooner through the water up to the wharf when his vessel hit the obstruction and was damaged.

In American Brewing Association v. Talbot, 141 Mo. 674, loc. cit. 683, 42 S. W. 679, 682 (64 Am. St. Rep. 538), it is said:

"Numerous authorities hold...