Corley v. Kroger Gro. & Baking Co., 39726.

• Citation: 193 S.W.2d 897
• Decision Date: 30 April 1946
• Docket Number: No. 39726.,39726.
• Court: Missouri Supreme Court
• Parties: HULDA CORLEY v. KROGER GROCERY & BAKING COMPANY, a Corporation, Appellant.

193 S.W.2d 897 HULDA CORLEY
v.
KROGER GROCERY & BAKING COMPANY, a Corporation, Appellant. No. 39726. Supreme Court of Missouri. Division Two, April 30, 1946.

Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.

AFFIRMED.

Wayne Ely for appellant.

(1) The law does not require a storekeeper to combat the elements to such an extent as to keep the entrance to his premises absolutely safe under weather conditions such as existed at the time plaintiff fell, and there was no showing that defendant could have done anything to prevent the step being slick at the time plaintiff fell. Reedy v. Brewing Assn., 161 Mo. 523, 61 S.W. 859; Bell v. Siegel, 136 N.E. 109; Hallock v. Ballachey, 258 App. Div. 774, 15 N.Y.S. (2d) 853; Meyer v. Michigan Central Ry. Co., 147 N.W. 485; Beierness v. City of Missouri Valley, 144 N.W. 628. (2) The courts will judicially notice that ice and snow make walking difficult, and make sidewalks and steps slick. Reedy v. Brewing Assn., 161 Mo. 523, 61 S.W. 859; Spoeneman v. Uhri, 60 S.W. (2d) 9. (3) No causal connection was shown between defendant's alleged negligence and plaintiff's injury. Reedy v. Brewing Assn., 161 Mo. 523, 536, 61 S.W. 859; Beierness v. City of Missouri Valley, 144 N.W. 628; Madden v. Red Line Service, Inc., 76 S.W. (2d) 435; Rose v. Thompson, 346 Mo. 395, 141 S.W. (2d) 824; Faust v. East Prairie Milling Co., 20 S.W. (2d) 918. (4) The condition of ice and snow on sidewalks and outside steps was general, and plaintiff was fully aware of such condition, and was or should have been aware of all danger, if any, in stepping on the snow-covered step leading to defendant's store. Therefore, plaintiff was guilty of contributory negligence as a matter of law. Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982; Cash v. Sonken-Galamba Co., 17 S.W. (2d) 927; Reedy v. Brewing Assn., 161 Mo. 523, 61 S.W. 859. (5) The weather report introduced in evidence by defendant affirmatively proves that the precipitation of sleet and snow was so continuous and so near the time of the accident, as to acquit defendant of negligence for failing to make the step dry and free of ice or snow at the time plaintiff slipped on it. Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 754; Reedy v. Brewing Assn., 161 Mo. 523, 61 S.W. 859; Hallock v. Ballachey, 258 App. Div. 774, 15 N.Y.S. (2d) 853; Meyer v. Michigan Central Ry. Co., 147 N.W. 485; Bell v. Siegel, 136 N.E. 109. (6) The court erred in permitting plaintiff to testify that the manager of the Kroger store told her she was the "third person that fell there today," and in permitting plaintiff's counsel to base an argument on such testimony. Such statement, if made by the manager, was a mere narrative of a past transaction, was outside the scope of the manager's employment; and could not constitute an admission on the part of defendant. State ex rel. S.S. Kresge Co. v. Shain, 101 S.W. (2d) 14; State ex rel. Vesper-Buick v. Daues, 19 S.W. (2d) 700; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1, 84 S.W. 26. (7) The court erred in permitting plaintiff's counsel to state in his closing argument to the jury that plaintiff's testimony that the store manager had told her that three other women had fallen there that day before she fell, "stands uncontradicted, and that simply shows this, that they knew of this condition before Mrs. Corley fell and was injured in ample time to have corrected it and have rendered it reasonably safe, so that she would not fall, but carelessly failed to take any steps, apparently, to do so." "Now, on that evidence, gentlemen, uncontradicted as it is, what conclusion can you reach from this evidence except that Mrs. Corley slipped and fell on this step, because of its condition, and sustained these injuries." State ex rel. S.S. Kresge Co. v. Shain, 101 S.W. (2d) 14; State ex rel. Vesper-Buick v. Daues, 19 S.W. (2d) 700; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Walsh v. Terminal Railroad Assn. of St. Louis, 182 S.W. (2d) 607; Wells v. Wells, 45 S.W. 1095; Evans v. Town of Trenton, 20 S.W. 614, (8) The court erred in permitting plaintiff's counsel to state in his closing argument to the jury that if the store manager had testified he would not have denied that "three other women had fallen there before Mrs. Corley fell," but "would have told you that was true," and the court erred in overruling defendant's objection to that argument. State v. McGrath, 128 S.W. 966; Jackson v. City of Malden, 72 S.W. (2d) 850; State v. Connor, 252 S.W. 713; Evans v. Town of Trenton, 20 S.W. 614. (9) The court erred in permitting plaintiff's counsel to argue that he had "tried to offer the deposition" (of the store manager) "in evidence. He testified — you mean about the other women falling — he testified in the deposition that this step was smooth, worn and slippery, on page 7," and the court erred in overruling objection to that argument. The deposition was not in evidence. It was offered by the plaintiff, and defendant's objection to the offering was sustained because the manager was present in court and available as a witness. Haynes v. Town of Trenton, 18 S.W. 1003; Chaffin v. Kansas City, 92 S.W. (2d) 917; State v. McGrath, 128 S.W. 966; State v. Connor, 252 S.W. 713; Ryan v. Sheffield Car & Equipment Co., 24 S.W. (2d) 166; Walsh v. Terminal Railroad Assn. of St. Louis, 182 S.W. (2d) 607. (10) The court erred in permitting counsel to repeat that the picture of the step at defendant's store entrance (Plaintiff's Exhibit I) was taken by defendant, and for not rebuking counsel, and in permitting counsel to state to the jury, after defendant's objection was sustained: "You have seen the picture, and it looks like a pretty smooth step to me. That is the old tactics of Mr. Ely, and I don't think he is going to be able to put it over on this jury by ridiculing, just like he tried to ridicule poor Mrs. Hornsby, for which he apologized. If he is able to put that over on this jury I will be very much surprised." Ryan v. Sheffield Car & Equipment Co., 24 S.W. (2d) 166; State v. Connor, 252 S.W. 713; Beck v. Railroad, 129 Mo....