Corley v. Kroger Grocery & Baking Co.

• Decision Date: 19 June 1945
• Docket Number: No. 26784.,26784.
• Court: Missouri Court of Appeals
• Parties: CORLEY v. KROGER GROCERY & BAKING CO.

189 S.W.2d 178

CORLEY v. KROGER GROCERY & BAKING CO.

No. 26784.

St. Louis Court of Appeals. Missouri.

June 19, 1945.

Rehearing Denied September 7, 1945.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Hulda Corley against Kroger Grocery & Baking Company for personal injuries sustained by plaintiff in a fall on a step at the entrance to defendant's store. Verdict and judgment for plaintiff, and defendant appeals.

Judgment reversed and case ordered certified and transferred to Supreme Court.

Wayne Ely, of St. Louis, for appellant.

William Kohn, of St. Louis, for respondent.

ANDERSON, Judge.

This is an action for damages for personal injuries sustained by plaintiff as a result of falling on a step at the entrance to defendant's store, which step at the time was wet from accumulated snow. There was a verdict and judgment for plaintiff, from which judgment defendant has appealed.

The accident complained of occurred at about 2 p.m. on January 18, 1943. Just prior to her fall, plaintiff had walked from the apartment house in which she lived to the store, a distance of about four blocks. She testified that it was a very cold day it had been snowing off and on that day, and it was snowing lightly at the time. She stated: "I remember it was just snowing lightly and the wind was blowing as it snowed." She fell at the entrance to the store. This entrance, which is recessed, is about five or six feet wide and about three feet deep. On the outer edge, and forming a part of the entrance way, is an iron step about 18 inches wide. In describing this step plaintiff testified: "and there is about an 18-inch iron step or steel grating, I don't know what you call it, and it formerly, I guess, had grooves, but in the middle there is a spot about this big that is worn very smooth and very slick (indicating). I had been in the store many times, but hadn't ever noticed it." The iron step was seven or eight inches above the level of the sidewalk. Beyond the iron step the entranceway is made of concrete. There were windows on each side of the entranceway.

Plaintiff further testified:

"I was walking west, and as I stepped up into the vestibule, naturally I stepped on the iron grating first. * * * I stepped on this iron step, and as I did my feet went from underneath me and I slipped. Naturally, when I fell I hit on my left hip, I lost my balance completely, landing on my elbows. It knocked me practically out for a minute. It knocked the wind out of me, and it took me a matter of a few seconds to come to enough to get up, and as I did I noticed then that it was slightly damp. A little bit of snow had brushed with my clothing as I fell, but I hadn't paid any attention to that, and I noticed when I tried to get up the step was worn as smooth as glass. It was smooth looking, shiny. * * *

"Q. Mrs. Corley, state whether or not there was any snow on this iron portion of the vestibule. A. There was a slight film. There wasn't much. I hadn't noticed it when I went in, and wouldn't have noticed it had it not been on my clothing when I fell."

On cross-examination plaintiff testified that she had traded at the store in question every other day for the preceding three months, and that during said time she had never slipped upon the step or noticed anything wrong with it. She stated that she had never paid any particular attention to the step before her fall; and when the question was asked, or rather the observation made, during cross-examination, "Why hadn't you ever slipped on it before, I wonder?", she answered, "Because as a rule I didn't go out when the weather was bad. I had never been out on a day like that before." (Italics ours.) She further stated that on the day she slipped there was a slight film of snow on the step; that there was also a slight film of snow on the sidewalk that morning, but not enough to make walking difficult; that the wind was blowing snow flurries about. After she fell, she went into the store, and when she informed the manager that she had fallen, he stated that she was the third person who had fallen on the step that day.

The case was submitted to the jury on the two following assignments of negligence:

"Defendant knew, or by the exercise of ordinary care could and would have known, of the dangerous condition of the step as aforesaid, prior to plaintiff's fall, in time, by the exercise of ordinary care, to have remedied the same and thus and thereby rendered the step reasonably safe for use by plaintiff and other customers of defendant, but negligently failed to do so.

"In failing to warn plaintiff of the dangerous condition aforesaid, although defendant knew thereof, or by the exercise of ordinary care could have known thereof, and that the said dangerous condition of the step was hidden by the snow, and that plaintiff was or might be unaware of it in time to have given such warning and thereby prevented plaintiff's fall."

Upon this appeal, appellant contends that plaintiff failed to make a case for the jury under either of the foregoing assignments, and that therefore the court erred in failing and refusing to give to the jury its requested instruction in the nature of a demurrer to the evidence.

In determining whether the court erred in refusing to give the peremptory instruction, we are limited to the two assignments of negligence submitted. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91.

The first assignment of negligence submitted was that defendant was negligent in failing to render the step reasonably safe for use by customers entering the store.

The testimony of plaintiff shows that at the time of the occurrence, it was snowing lightly and the wind was blowing the snow about. The step in question was an outside step, where snowflakes would necessarily fall under the conditions testified to. In view of this evidence, we cannot say that a failure to remove immediately every snowflake as it fell, or with a blow torch or by some other means to dry the moisture created by the film of snow as it fell, could reasonably be held to be a breach of duty which defendant owed to plaintiff as an invitee. To so require would be to demand an exercise of such extraordinary care as would be unreasonable. We are satisfied that no case for the jury was made under the assignment of negligence in question.

We next turn to the failure of defendant to warn plaintiff of the alleged dangerous condition. Said condition was not brought about through any negligence of the defendant, but was the result of natural causes operating on a step worn from use.

The basis of liability in this kind of a case is the superior knowledge of the possessor of the land. The rule applicable is stated in Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390, loc. cit. 393, as follows:

"The basis of liability of the possessor of land to his business invitee for injuries resulting from a condition existing on the premises is the possessor's superior knowledge. State ex rel. First National Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84. He is liable `if, but only if, he knows the condition' which involves an unreasonable risk of harm to his invitee. 2 Restatement, Law of Torts, § 343. Conversely, it is also a principle that a defendant storekeeper or landowner is not liable to his business invitee for injuries resulting from an open, obvious condition, just as well known to the invitee as it is to the owner. If the invitee is aware of the situation or it is such that he could not but be conscious of it, and the consequences of disregarding it, if he were using his faculties, he cannot recover. Neither is he entitled to a warning because he has all the information a warning would give him. For this reason there was no liability when the plaintiff saw and was told that the floor was being mopped and yet walked on it. Murray v. Ralph D'Oench Co., 347 Mo. 365, 147 S.W.2d 623. And so it was with the postman who fell on the slick runway and the milkman who walked on the greasy stairs; they knew the facts and so were not entitled to recover when they acted in disregard of the information they had. Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Reddy v. Joseph Garavelli, Inc., 232 Mo.App. 226, 102 S.W.2d 734.

"Furthermore, a business invitee cannot fasten liability on the owner or proprietor by failing or neglecting to see that which is perfectly obvious to a person in possession of his faculties. Ilgenfritz v. Missouri P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; Mullen v. Sensenbrenner Merc. Co., Mo. Sup., 260 S.W. 982, 33 A.L.R. 176; Heidland v. Sears Roebuck & Co., 233 Mo.App. 874, 110 S.W.2d 795; Cates v. Evans, Mo. App., 142 S.W.2d 654; Stoll v. First National Bank, 345 Mo. 582, 134 S.W.2d 97.

In the case at bar the burden was upon plaintiff to show a set of circumstances which cast upon defendant a duty to warn. This she has not done. The film of snow and the dangerous condition were obvious to anyone exercising ordinary care. This is the only reasonable inference that could be drawn from the evidence. There is no evidence that the worn condition of the step was hidden from view. Plaintiff says that she observed the condition after her fall, but gives no reason why the condition was not observable prior thereto. Everyone knows that snow is slick, and everyone knows that any worn surface is rendered especially slick by the presence thereon of moisture. Due care did not require defendant to warn plaintiff of these simple facts. She was bound to know them. To require defendant to do so would be to place upon it an unreasonable burden, a duty to exercise a higher degree of care than the law and common sense should require.

Respondent relies mainly upon the case of Cameron v. Small et al., Mo.Sup., 182 S.W.2d 565. We believe, however, that the facts in that case are so different from the facts in the case at bar that it is not an authority which would...