Daughhette v. Montgomery Ward & Co.

• Decision Date: 14 December 1940
• Parties: ALBERTA DAUGHHETTE, RESPONDENT, v. MONTGOMERY WARD & CO., A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

146 S.W.2d 72

236 Mo.App. 218

ALBERTA DAUGHHETTE, RESPONDENT, v. MONTGOMERY WARD & CO., A CORPORATION, APPELLANT

Court of Appeals of Missouri, Springfield

December 14, 1940

Appeal from the Circuit Court of Butler County.--Hon. Robert I Cope, Judge.

REVERSED (with directions).

Case reversed.

Henson & Henson for appellant.

(1) Plaintiff alleged that on and prior to the 3rd day of February, 1940, the defendant negligently placed upon the floor and steps of the stairway used by its customers in going from the first to the second floor of its store some kind of substance which rendered said floor and steps slick and dangerous to persons using same and that said condition of said floor and steps was well known to defendant, its agent, servants and employees, or had existed for such a length of time prior to said date that same could have been known to defendant by the exercise of ordinary care in time thereafter, by the exercise or ordinary care, to have remedied same and thus prevented plaintiff's injuries. The burden was on plaintiff to prove both of such assignments of negligence. McGrath v. St. Louis Transit Co., 197 Mo. 97, l. c. 105; Van Horn v. St. Louis Transit Co., 198 Mo. 481, l. c. 490; Bonnarens v. Lead Belt Ry. Co., 273 S.W. 1043, l. c. 1046; Kuhlman v Water, Light & Transit Co., 271 S.W. 788, l. c. 798. (2) The mere showing that plaintiff accidentally fell and was thereby injured does not make a case for plaintiff. State ex rel. v. Cox, 298 Mo. 427, 250 S.W. 551; Pointer v. Mountain Ry. Const. Co., 269 Mo. 104, 189 S.W. 805; Krelitz v. Calcaterra, 33 S.W.2d l. c. 910; Barack v. Safe Co., 288 Mo. 83, 231 S.W. 623; DeMoss v. Railway Co., 296 Mo. 526, 246 S.W. 566. (3) Defendant was not an insurer of plaintiff's safety while she was in its store but was only required to exercise ordinary care to keep the floor and steps of its store in a reasonably safe condition for the use of its customers in the ordinary and usual way. Gallagher v. Kroger Grocery Co., 272 S.W. 1005; Chapman v. Clothier, 274 Pa. 394. (4) Defendant was not required to keep its store in an absolutely safe condition for its customers. Myer v Chicago Rock Island & Pacific Railway Company, 103 Mo.App. 268; Douglas v. Sheppard Norville Company, 217 Mass. 120, 104 N.E. 491. (5) Under the facts in this case, the accidental falling of plaintiff could not have been reasonably anticipated by defendant. DeMoss v. K. C. Ry Co., 296 Mo. 526; Daneschocky v. Sieber, 195 Mo.App. 470; Benton v. St. Louis, 248 Mo. l. c. 110; American Brewing Co. v. Talbot, 141 Mo. 674; State ex rel. Lusk v. Ellison, 271 Mo. 463. (6) The giving of an instruction permitting the jury to find a fact when there is no evidence in the record upon which to base such finding constitutes reversible error. Holloway v. Barnes Groc. Co., 15 S.W.2d 917-921; Kuhlman v. Transit Co., 307 Mo. 707, 271 S.W. 788-797; Schumacher v. Breweries Co., 247 Mo. 141, 162, 152 S.W. 13. (7) Instruction Number P-3, as given to the jury is especially erroneous in that it is not clear and understandable, but is in such form as would confuse the minds of the jury and the giving of said instruction to the jury constitutes a reversible error. Morris v. Morris, 28 Mo. 114; Gillette v. Laederick, 242 S.W. 112; Schipper et al. v. Brashear Truck Company, 132 S.W.2d 993, l. c. 996. (8) Under all the facts and circumstances in this case, there is no liability on the part of the defendant. Cluett v. Union E. Co., 220 S.W. 865; Halloran v. Pullman Car Co., 148 Mo.App. l. c. 247-8, 127 S.W. 946; Lapin v. Baseball Club, 33 S.W.2d 1025; Miller v. Merc. Co., 260 S.W. 982; Main v. Lehman, 249 Mo. 579, 243 S.W. 91; Heidland v. Sears Roebuck & Co., 110 S.W.2d 795; Achter v. Sears Roebuck & Company, 105 S.W.2d 959. (9) Plaintiff's injuries resulted from a mere accident for which no one is liable. Zasemowich v. Am. Mfg. Co., 213 S.W. 799; Breen v. Johnson Bros. Drug Co., 248 S.W. 970, 973; Sabol v. Cooperage Co., 313 Mo. 527, 282 S.W. 426; Zies v. Brewing Co., 205 Mo. l. c. 648; Henry v. Railroad, 113 Mo. 525; Feary v. Railroad, 162 Mo. l. c. 100; Beauvis v. St. Louis, 169 Mo. l. c. 506.

Tedrick & Tedrick and Byron Kearbey for respondent.

(1) Plaintiff is entitled to recover in this case as the question of dangerous condition of the floor and defendant's knowledge thereof were questions for the jury. Dagley v. National Cloak & Suit Company, 22 S.W.2d 892; Scott v. Kline's, Inc., 284 S.W. 831; Petera v. Ry. Exchange Bldg., 42 S.W.2d 947; Smith v. Sears-Roebuck & Co., 84 S.W.2d 414; Murphy v. Fidelity Nat'l. Bank & Trust Co., 49 S.W.2d 668; Phelps v. Montgomery Ward & Company, 107 S.W.2d 939; Bankhead v. First Nat'l Bank in St. Louis, 137 S.W.2d 594; Hubenschmidt v. S. S. Kresge Company, 115 S.W.2d 211; Bowden v. S. H. Kress & Company, 198 N.C. 559, 152 S.E. 625; Ward v. Avery, 133 Conn. 394, 155 A. 502; Bradford v. F. W. Woolworth Company, 141 S.C. 453, 140 S.E. 105; Lamb v. Purity Stores, Inc., 119 Cal.App. 690, 7 P.2d 197; Harvey Furn. Co. v. Jewell, 38 Ga.App. 395, 144 S.E. 46; MacDonald v. F. & W. Grand, Inc., 89 Pa.Super. Ct. 526. (2) Plaintiff's Instruction No. P-1 is supported by the evidence, and correctly states the law, therefore is not erroneous as contended by appellant. Phelps v. Montgomery Ward & Company, 107 S.W.2d 939; Bankhead v. First National Bank in St. Louis, 137 S.W.2d 594; Scott v. Kline's, Inc., 284 S.W. 831; Havery Furniture Company v. Jewel, 38 Ga.App. 395, 144 S.E. 46; Gould v. C. B. & Q. Ry. Co., 290 S.W. 135; March v. Pitcairn, 125 S.W.2d 972. (3) Giving abstract proposition of law in instruction is be condemned but is rarely reversible error. Howard v. Fred Schmitt Realty & Investment Company, 7 S.W.2d 448; Underwood v. Hall, 3 S.W.2d 1044; Gann v. C. R. & P. Ry. Company, 6 S.W.2d 39; Kleinlein v. Foskin, 13 S.W.2d 648; Plater v. W. C. Mullins Construction Co., 17 S.W.2d 658.

TATLOW, P. J. Smith and Fulbright, JJ., concur.

OPINION

TATLOW, P. J.

--This is an action for personal injuries, based on the alleged negligence of the appellant (defendant below) on account of a fall sustained by respondent (plaintiff below) in defendant's store. The parties will be referred to as plaintiff and defendant.

The charging part of the petition is as follows: ". . . defendant negligently placed upon the floor and the steps of the stairway used by its customers in going from the first to the second floor of its store, some kind of substance, the name of which is unknown to the plaintiff, which said substance rendered said floor and steps slick and dangerous to persons using same, which condition of said floor and steps was well known to the defendant, its agents, servants and employees, or had existed for such a length of time prior to the date plaintiff received her injuries as hereinafter set out that same could have been known to it by the exercise of ordinary care, in time thereafter, by the exercise of ordinary care, to have remedied same and thus prevented plaintiff's injuries."

The answer was both a general and special denial.

At the close of all of the evidence in the case the defendant requested the court to direct a verdict in its favor, which the court refused to do, to which the defendant excepted, and has duly appealed the case to this court.

The main assignment of error is that the court refused to direct a verdict in defendant's favor. The plaintiff's evidence to support the action of the court in submitting the case, is as follows:

The plaintiff's testimony as to how the accident occurred is as follows:

" . . I was carrying the bundle under my left arm and my purse in my right hand. I started to go back downstairs. When I got down to the top of the steps, just as I was fixing to go down the steps--just as I was fixing to step down on the first step, I felt my feet slip--both of them slipped out from under me. First, I went back that way (indicating), then I pitched forward. Then, I tried to catch myself with my right hand. I caught 'hold of the bannister, but I couldn't hold onto it. My weight jerked me loose and I went on down. I had my gloves on and the bannister was slick and I couldn't hold my weight and I went headfirst on down the steps. After I slipped at the top of the steps, I grabbed the bannister with my right hand, but I couldn't hold onto it. My weight jerked me loose. It was the right-hand bannister. I was trying to catch myself. After my hand jerked loose, I just fell head-first on down the steps to the landing below. I slid down the steps to the landing. I believe there was a dozen or more steps but I didn't count them. When I struck the landing down below, I stopped. As I was falling down the steps, I heard someone scream. Then, when I fell down to the bottom of the steps, they run to me and asked me if I was hurt and I says, 'I don't think so, but I want some water.' Then, they started to raise me up. I don't know who it was. They was to my back. Then, I passed out. They put me over on a bed. When I came to, I was on the bed. I did not notice or see any oil or grease or other substances of any kind on the floor there where I slipped and fell, before I fell. I never looked.

"Q. Are you telling the Jury that you slipped, or that you stumbled, or that your feet gave way, or what? A. I slipped.

"Q. Are you positive that your feet slipped on the floor? A. Yes, sir, I seen them slip and I felt them going out from under me.

"Q. Mr. Henson said in his opening statement that you made the statement, the reason you fell it was your own fault, did you say that? A. I might've said, 'my own awkardness.' I don't know whether I did or not. I might've said that.

" . . After I got straightened around, I noticed the shoes that I were wearing that day and these stockings I purchased (that sh...