Dagley v. National Cloak & Suit Co.

• Decision Date: 29 April 1929
• Parties: BEULAH DAGLEY, RESPONDENT, v. NATIONAL CLOAK AND SUIT COMPANY AND GENERAL OUTDOOR ADV. CO., APPELLANT. [*]
• Court: Kansas Court of Appeals

22 S.W.2d 892

224 Mo.App. 61

BEULAH DAGLEY, RESPONDENT, v. NATIONAL CLOAK AND SUIT COMPANY AND GENERAL OUTDOOR ADV. CO., APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

April 29, 1929

Appeal from Circuit Court of Jackson County.--Hon. Brown Harris Judge.

AFFIRMED.

Judgment affirmed.

Trusty & Pugh for respondent.

A. L Berger and Morrison, Nugent, Wylder & Berger for appellant.

D. C Johns of Counsel.

BARNETT, C. Lee, C., concurs. Trimble, P. J., absent.

OPINION

BARNETT, C.

This is a suit for personal injuries. The suit was tried on a second amended petition which was again amended at the trial after the introduction of evidence. The petition thus amended alleged that National Cloak and Suit Company owned, maintained, and operated a mercantile establishment in Kansas City, Kansas; that on December 12, 1925, the General Outdoor Advertising Company was doing some work for and on behalf of National Cloak and Suit Company in its retail store, at and over a window near a merchandise counter. For that purpose the advertising company was using a ladder, leaning against the inside of the wall over the window and resting on the floor. The plaintiff was a customer in said store engaged near the foot of said ladder in the purchase of merchandise. The ladder slipped and turned, whereby she was injured; that the floor was smooth and slick; that the ladder was resting thereon and not fastened to the floor to keep it from slipping or falling, and a man was working thereon; that National Cloak and Suit Company knew or by due care should have known that the ladder was likely to fall or slip or turn over and cause injury to persons near by, but defendant National Cloak and Suit Company, through one of its clerks, negligently took the plaintiff from a place of safety to a point near said ladder to show her merchandise, and negligently failed to warn her of the presence of the ladder or the likelihood of its falling, and by reason thereof she was injured; that National Cloak and Suit Company negligently failed to exercise ordinary care to warn people that the ladder was likely to fall and negligently failed to exercise ordinary care to secure the ladder or to hold it in position to keep it from falling or slipping when the ladder was likely to fall unless such precautions were exercised; that the advertising company was negligent in resting the ladder upon a floor that was smooth and slick without fastening or securing it; that by reason of said facts it was likely to and did fall, and the defendant knew or by the exercise of ordinary care could have known said facts, and knew or by the exercise of ordinary care could have known that persons would likely be at the place where plaintiff was injured, and negligently failed to warn plaintiff of such danger.

The evidence most favorable to plaintiff is to the effect that plaintiff went into the store of National Cloak and Suit Company in Kansas City, Kansas, and was invited by a clerk to the end of the store near the show-window where plaintiff contemplated buying merchandise. This happened about noonday. A ladder about ten feet long rested on the floor and leaned on the top edge of the show-window. The show-window was seven or eight feet high and the bottom of the ladder rested on the floor about four feet out from the bottom of the show-window, so that the ladder was placed at an angle of about sixty degrees or more from the perpendicular. The cloak and suit company, in sweeping its floors, was in the habit of using a sweeping compound which contained oil, and the use of the oily compound had a tendency to make the pine floor smooth and somewhat slick. The bottom of the ladder did not rest against any brace nor was it cleated or secured in any manner; but those who used the ladder depended entirely upon gravity and friction to keep the ladder in its place. The ladder had remained in this position and condition since the workmen went to work in the morning. A man was working upon the ladder, and for some reason the ladder slipped and fell and struck the plaintiff, whereby she was injured.

The evidence disclosed that National Cloak and Suit Company had entered into a contract with General Outdoor Advertising Company to install an electrical sign on the outside of the building. The sign had been hung and the man who was working on the ladder was engaged in wiring which was necessary to connect the electrical wires on the inside of the building with the sign. The advertising company did not have a license to do electrical work in Kansas City, Kansas, and it had therefore entered into a written contract with the Murray Electrical Company to do the wiring. The written contract was in the form of a proposal from the electrical company to the advertising company to furnish all labor and material for the correct installation of electrical wiring in the cloak and suit company's store in Kansas City, Kansas, and provided for enlarging the service from one hundred ampere three pole capacity to two hundred ampere three pole capacity, and for running three No. 6 wires from a meter board in the basement to terminate on top of the window with switch near the window on the first floor, and provided that all materials should be first class and installed according to Underwriters Rules and Regulations and should pass the city inspection. This proposal was accepted in writing by the advertising company. Defendant's evidence was to the effect that the electrical company did the work and was paid for it. However, Mr. Robertson, the electrician for the General Outdoor Advertising Company, testified that he was foreman of the electrical department of the advertising company; that he was in the store of the cloak and suit company on the day of the injury; that he went to work in the store at about ten minutes until nine in the forenoon and that he took one of the employees of the advertising company to work with the electric company's men; that he sent his helper to help the Murray men on the inside. It was this helper, one Sullivan, who was on the ladder which slipped and fell. Mr. Robertson testified that he turned the helper over to Murray of Murray Electrical Company; that "Murray allows anyone with him and he used this man to save cost, to save paying for an extra helper for his men," that to save this cost he agreed to take one of the advertising company's employees and use him. The advertising company's foreman testified that he was present to "tell the boys how to do the work" and that he directed the men what to do; that he was just there supervising and that it was understood at the time of letting the job that he was to supervise; that he "did not do any of the actual work but told the others how to do it and what to do;" that the advertising company paid Sullivan and that the electric company would have had to charge a greater price if they had had to hire a supervisor and a man to take the place of the employee furnished by the advertising company. The attorney for the advertising company asked the foreman:

"Q. What do you mean when you say to these gentlemen that you were supervisor? Did you give the orders and have charge of Murray's men?"

The foreman answered: "Yes, sir."

At request of plaintiff the court gave instruction B, which is as follows:

"If you find from the evidence that at the time and place referred to in the evidence the floor where the ladder rested was smooth and slick and that the ladder was not fastened to the floor, and that the General Outdoor Advertising Company was using said ladder; and,

"If you further find from the evidence that by reason of the facts, if they existed, set forth in the above paragraph, the ladder was likely to, and did, slip or fall and injure the plaintiff while she was at the place referred to in the evidence; and,

"If you further find from the evidence that the defendant General Outdoor Advertising Company knew, or by the exercise of ordinary care should have known, of the facts above set forth, if you find they existed, when the plaintiff was taken or went to said place, and that said defendant knew or by the exercise of ordinary care should have known that persons would likely be and that plaintiff was at said place in time to have warned the plaintiff of the danger from said ladder, if such danger existed, and failed to warn plaintiff thereof if so; and,

"If you further find from the evidence that because of all the foregoing facts, if you find from the evidence they existed, the defendant, General Outdoor Advertising Company, failed to exercise ordinary care for the safety of the plaintiff, and that such failure of said defendant, if it did so fail, directly caused her to be injured, if she was, by said ladder, then you must return a verdict against said General Outdoor Advertising Company, and in favor of the plaintiff, Beulah Dagley."

There was a verdict for plaintiff against both defendants and both have appealed.

OPINION.

Neither the National Cloak and Suit Company nor the General Outdoor Advertising Company has made the contention in this court that plaintiff was guilty of contributory negligence as a matter of law. Both appellants in their assignments of error state that the court erred in refusing to sustain a peremptory instruction in the nature of a demurrer to the evidence and the second assignment of error by National Cloak and Suit Company states that the court erred in submitting the case to the jury because the evidence did not establish or tend to establish negligence on the part of the cloak and suit company or on the part of anyone. The cloak and suit company in its brief raises the question as to whether or not that company was negligent and also raises the point that it is not liable for the...