Corley v. Kroger Grocery & Baking Co.

• Citation: 193 S.W.2d 897,355 Mo. 4
• Decision Date: 30 April 1946
• Docket Number: 39726
• Parties: Hulda Corley v. Kroger Grocery & Baking Company, a Corporation, Appellant
• Court: United States State Supreme Court of Missouri

193 S.W.2d 897

355 Mo. 4

Hulda Corley v. Kroger Grocery & Baking Company, a Corporation, Appellant

No. 39726

Supreme Court of Missouri

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 A.D. 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 A.D. 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.App. 7, 108 S.W. 132; Chaffin v. Kansas City, 92 S.W.2d 917; Walsh v. Terminal Railroad Assn., 182 S.W.2d 607. (11) The court erred in giving Instruction 1. This instruction was broader than the evidence in that it permitted the jury to find that the step was "slick, slippery, dangerous, and not reasonably safe to step or walk upon" when dry. State v. Thompson, 337 Mo. 328, 85 S.W.2d 594. (12) The court erred in refusing Instruction C requested by defendant. Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30; Borgstede v. Waldbauer, 88 S.W.2d 373; Bashkow v. McBride, 177 S.W.2d 637; Gower v. Trumbo, 181 S.W.2d 653; Jennings v. Cooper, 230 S.W. 325; Brokerick v. Brennan, 170 S.W.2d 686; Root v. Quincy, O. & K.C.R. Co., 141 S.W. 610; Bloecher v. Duerbeck, 62 S.W.2d 553. (13) The court erred in refusing Instruction D requested by defendant. State v. Thompson, 337 Mo. 328, 85 S.W.2d 594. (14) The court erred in refusing Instruction E requested by defendant. State v. Thompson, 337 Mo. 328, 85 S.W.2d 594.

William Kohn for respondent.

(1) Plaintiff's testimony was sufficient to entitle her to go to the jury upon the question of defendant's negligence, as well as upon the claim of contributory negligence. Bankhead v. First Nat. Bank, 137 S.W.2d 594, certiorari quashed in State ex rel. v. Hughes, 144 S.W.2d 84; Perringer v. Lynn Food Co., 148 S.W.2d 601; Glasgow v. St. Joseph, 184 S.W.2d 412; Harrison v. K.C.S. Light Co., 195 Mo. 606; Brash v. St. Louis, 161 Mo. 433; Vogelgesang v. St. Louis, 139 Mo. 127; Meadows v. Wabash, 221 Mo. 373; Savona v. May Dept. Stores, 71 S.W.2d 157; Cameron v. Small, 182 S.W.2d 565. (2) The statement of defendant's store manager, made in the store right after plaintiff's fall, to the effect that plaintiff was the third person who had fallen on the step that day, was competent to prove the fact that prior to plaintiff's fall defendant had notice of the dangerous condition of the step. Wainwright v. Westborough Country Club, 45 S.W.2d 86; Pulsifer v. City of Albany, 226 Mo.App. 529, 47 S.W.2d 233; Godsy v. Thompson, 179 S.W.2d 44; State ex rel. v. Shain, 101 S.W.2d 14; Henry v. First Natl. Bank of K.C., 115 S.W.2d 121; Fisher v. Pullman Co., 212 Mo.App. 280, 254 S.W. 114. (3) The argument to the jury was not prejudicial. Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552; Jones v. Kansas City, 76 S.W.2d 340. (4) Instruction 1 was not broader than the evidence. (5) Instructions C, D and E were correctly refused because their substance was covered by defendant's given instructions 3 and 4.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

Hulda Corley obtained a judgment of $ 3,000 for personal injuries sustained in a fall at the entrance of one of the stores of Kroger Grocery & Baking Company, a corporation, and the defendant appealed. One of the Judges of the St. Louis Court of Appeals believing the cause should be remanded for a new trial dissented from an opinion reversing the judgment and the cause was certified here for determination. See 189 S.W. 2d 178, where the facts may be found in greater detail than herein set forth.

Mrs. Corley lived in an apartment building about four blocks from one of defendant's stores in St. Louis. On bad days she would shop in a small store in the apartment building, but had been making purchases at defendant's store two or three times a week for two or three months. The entrance to the store was described as six feet wide and three feet deep, flanked by show windows, and from seven to eight inches above the sidewalk level. This entrance, or vestibule, was of concrete with a metal strip at the sidewalk edge of about eighteen inches deep across its seven feet of width. The strip originally had...