Cluett v. Union Electric Light & Power Co.

• Decision Date: 13 March 1920
• Docket Number: No. 21122.,21122.
• Citation: 220 S.W. 865
• Court: Missouri Supreme Court
• Parties: CLUETT v. UNION ELECTRIC LIGHT & POWER CO.

220 S.W. 865

CLUETT v. UNION ELECTRIC LIGHT & POWER CO.

No. 21122.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Rehearing Denied April 9, 1920.

Appeal from St. Louis Circuit Court; Thomas L. Anderson, Judge.

Action by Laura E. Cluett against the Union Electric Light & Power Company for personal injuries. There was a judgment for plaintiff, and defendant appealed to the St. Louis Court of Appeals (205 S. W. 72), where the judgment was reversed, and the case is certified on account of a dissent on the ground that the opinion was in conflict with decisions of the Supreme Court. Opinion of the Court of Appeals sustained, and judgment of circuit court reversed.

On November 20, 1914, plaintiff filed in the circuit court of the city of St. Louis, Mo., a suit for damages for personal injuries sustained by her as a result of the alleged negligence of defendant on September 26, 1914. Defendant was engaged in furnishing electric current and service to the public, with its office, at Twelfth and Locust streets, in St. Louis, Mo. She alleges in her petition that about the noon hour of the date aforesaid she entered defendant's office for the purpose of transacting business with appellant; that at said time and place the floor of said office was wet, soapy, and slippery; that defendant's porter was then engaged in cleaning and washing said floor; that just as she entered and proceeded a few feet from the door upon said wet and slippery floor, where she was compelled to walk in passing into and through said office, she fell and sustained severe injuries, etc., as a direct and proximate result of the negligence of defendant in having and causing said floor at said time to be wet, soapy, and slippery; that it was not reasonably safe for plaintiff and persons entering said office to walk upon; that defendant was guilty of negligence in failing to warn plaintiff as to the condition of said office floor; that by reason of the foregoing she has been damaged in the sum of $5,000, etc.

The answer contains a general denial, plea of contributory negligence, etc. The reply denies the new matter pleaded in said answer.

Plaintiff recovered a judgment before a jury for $2,500, and defendant duly appealed to the St. Louis Court of Appeals. The latter, by a divided court, reversed the judgment below in an opinion filed. Judge Allen dissented and also filed an opinion. Both the majority and dissenting opinions will be found reported in 205 S. W. at pages 72 and following. The case was duly certified to this court on account of said dissent.

The facts, as far as necessary, will be considered in the opinion.

Schnurmacher & Raassieur and W. M. Hezel, all of St. Louis, for appellant.

Hall & Dame, of St. Louis, for respondent.

RAILEY, C. (after stating the facts as above).

1. It may be conceded, for the purposes of the case, that plaintiff was lawfully on defendant's premises, as an invitee, at the time and place of accident. It may be likewise conceded that at the time of plaintiff's entrance into defendant's place of business, on the date aforesaid, appellant owed to her the duty of exercising ordinary care to see that said premises where she had to travel were kept in a reasonably safe condition. O'Donnell v. Patton, 117 Mo. 13, 22 S. W. 903; Hollis v. Merchants' Ass'n, 205 Mo. 508, 103 S. W. 32, 14 L. R. A. (N. S.) 284; Glaser v. Rothschild, 221 Mo. loc. cit. 186, 120 S. W. 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; Oakley v. Richards, 275 Mo. loc. cit. 276, 204 S. W. 505; Shaw v. Goldman, 116 Mo. App. loc. cit. 338, 92 S. W. 165.

2. In order to determine whether defendant was violating a duty which it owed to plaintiff at the time and place of accident, it will be necessary to consider the evidence as to what actually occurred at that time, without regard to the conclusions drawn by witnesses as to the real facts. Plaintiff testified that on September 26, 1914, she went to defendant's office on Twelfth street to pay her bill; that it was a long office, not very wide, and she started to go to the south end, where the bills are collected. As part of her direct examination, she testified:

"I went to the door as usual, and when got inside I noticed that the porter was washing up the floor, and I walked around the side that I supposed was left for me to walk on, and when I got around over here (indicating) to the wall, I slipped suddenly; I slipped and fell; I fell on my left side; I couldn't get up."

She again testified:

"Q. Now, just state, then, more fully, what transpired when you went into the door of the office. A. After I had gone into the office I slipped and fell, and evidently rolled over on my right side."

Continuing in chief, she further testified:

"Q. What did you notice on the floor there, if anything? A. The porter had been washing the floor. This was a dry place I walked over. I walked over the dry place that supposed had been left for that purpose, and that is where I slipped. * * *

"Q. Now, did you see anything there that this porter had, this janitor? L. A mop, pail, and suds, where he was washing the floor.

"Q. What was he doing at the time? A. Washing the floor.

Q. Where was he washing the floor? A. On this side (indicating), and I walked on this side (indicating).

"Q. How close were you to where he was? A. Not very far. As I say, the office is narrow; not very far from where he was, but far enough to get over here where I supposed it was dry, but it wasn't dry. * * *

"Q. Now, what kind of a floor was this? A. I don't know whether it was of concrete; or whether it was plain linoleum; it was a smooth surface.

"Q. Did that apply to the whole floor as far as you saw? A. So foe as I know; yes, sir."

(Italics ours.)

She testified that she did not really knew how she got back from the counter. She further testified in chief:

"Q. I will ask you when you went into the office whether or not anybody told you about the condition of the floor, or said anything to you? A. Nobody."

On cross-examination she testified that she weighed from 160 to 180 pounds.

"Q. You said the floor was smooth; you didn't notice any unevenness or any obstruction of any kind? A. No, sir.

"Q. Either before you fell or after? A. No, sir.

"Q. The fact is that after looking to see that you were going along what you thought was the dry places, you didn't even give it any further consideration, not enough to know whether it was a linoleum floor or— A. No; I did not.

"Q. — a wood floor? A. No. * * *

"Q. Now, you noticed absolutely nothing wrong with the floor there, either before you fell or after you fell, and when you say it was slippery, you mean you think it was slippery because you fell there? A. No; because he was washing it up. I suppose it was slippery was the cause of my slipping.

"Q. You mean because he was wiping it up? A. Yes, sir.

"Q. But you didn't notice anything wrong there; you didn't notice anything on the floor to make it slippery, did you? A. No, sir.

"Q. You say it was slippery because you fell? A. I supposed it was washed, you know, and avoided his pail.

"Q. I am not asking what you supposed, but in regard to the facts. A. Well.

"Q. Was there anything you saw there at all— A. Nothing at all.

"Q. — that would make it slippery? A. No.

"Q. Now, after you got up, after he picked you up, then in looking forward was the place all dry except to the side where he was working? A. Clear to me.

"Q. Excepting where he was working? A. Except where he was working.

"Q. When you say looked clear, I asked you whether it looked wiped? A. Been wiped up, evidently, I thought.

"Q. Yes. Now after you came in and you saw him at work there mopping up, and after you picked what you supposed was the dry part, you kept right on with it, paying no further attention or looking at the floor at all; is that right? A. I didn't look at the floor at all, Mr. Rassieur.

"Q. You didn't look at the floor at all? A. No. * * *

"Q. He had soapsuds on the floor and that's the reason you went around and stayed from it four or five feet? A. Yes."

(Italics ours)

Richard Cox testified that he, used a mop with water and soap powder; that he used about a handful of soap powder with four or five gallons of water; that lie did not see plaintiff when she fell; that he was in two or three feet of her when she fell to his right towards the place where the water was on the floor; that she was "squatted down" and he helped her up; that to her right was a mat about four feet wide, a rubber mat about an inch thick, with half-inch round holes in it; that there was nothing to prevent plaintiff from walking on the mat, nor on the floor alongside of the mat; that plaintiff fell into above water; that it was dry where she fell and that she fell over into the water at the place where he was mopping; that there was no water where she fell; it was dry.

On cross-examination he testified that there was no bucket between himself and plaintiff; that the soap powder would make the water kind of soapy like; that it was wet where he was mopping; that he just mopped down the center isle where people had walked; that plaintiff walked where persons usually walked when they went to pay bills; that it was a linoleum floor which had been down a little over a year.

On re-examination witness testified that after he had washed up a strip he would dry it, and at the time plaintiff fell he was mopping up the center aisle; that he was not mopping up for the day, merely mopping up the dirty places.

The petition alleges that plaintiff entered defendant's office about the noon hour when she was injured.

We have quoted from plaintiff's testimony as set out in her additional abstract of record. She testified in chief that—

"This was a dry place I walked over; I walked over the dry place that I supposed had been left for that purpose, and that is where I slipped." (Italics ours.)

On cross-examination she testified as follows:

"Q. But you didn't notice...