Edmondson v. Hotels Statler Company

• Decision Date: 30 December 1924
• Docket Number: 24602
• Citation: 267 S.W. 612,306 Mo. 216
• Parties: JEAN EDMONDSON v. HOTELS STATLER COMPANY, Appellant
• Court: Missouri Supreme Court

267 S.W. 612

306 Mo. 216

JEAN EDMONDSON v. HOTELS STATLER COMPANY, Appellant

No. 24602

Supreme Court of Missouri

December 30, 1924

Rehearing Denied December 30, 1924.

Appeal from St. Louis City Circuit Court; Hon. Anthony F Ittner, Judge.

Affirmed.

M U. Hayden for appellant.

(1) There is a failure of proof of the negligence alleged in respondent's petition. This case involves the relationship of master and servant. Appellant's duty was to exercise ordinary care to furnish a reasonably safe place for respondent's use in the performance of her duties, while she was herself in the exercise of ordinary care for her own safety. While the evidence tends to show that there was an open space between two of the slats in the grating, due to the fact that one slat was missing, it does not show that, with that slat out, the grating was not reasonably safe within the meaning of that term as applied to appellant's duty. Benton v. St. Louis, 248 Mo. 98; State ex rel. Lusk v. Ellison, 271 Mo. 463; Main v. Lehman, 294 Mo. 579; O'Neill v. City of St. Louis, 292 Mo. 663; Ryan v. Kansas City, 232 Mo. 471. (2) The duty of an employer is to exercise ordinary care to furnish his employee a place of work which is reasonably safe for use by such employee while the latter is himself exercising ordinary care. The employer may rely upon the employee's exercising ordinary care for his safety in performing the ordinary simple duties of his employment. Forbes v. Dunnavant, 198 Mo. 193; Modlagl v. Foundry Co., 248 Mo. 587; Williams v. Railroad, 257 Mo. 87; Knorpp v. Wagner, 195 Mo. 637; Pulley v. Oil Co., 136 Mo.App. 172; Blundell v. Elevator Co., 189 Mo. 552. (3) There is no obligation on the part of the employer to take more care of the employee than he may reasonably be expected to take of himself. Robnett v. Griesedieck Bros. Brew. Co., 209 Mo.App. 378. (4) Regardless of whether appellant was negligent as charged in the petition, respondent was guilty of such contributory negligence, as a matter of law, as bars her right to recover. She was thoroughly familiar with the location of the open space in the grating. She fully appreciated whatever danger, if any, inhered in standing or walking on the grating. She could have avoided her injury by stepping to either side of the open space. Nevertheless, she allowed her foot to get in there and she was injured. Woodson v. Railroad, 224 Mo. 685; Wheat v. St. Louis, 179 Mo. 572; Kaiser v. St. Louis, 185 Mo. 366; Coffey v. Carthage, 186 Mo 574; Ryan v. Kansas City, 232 Mo. 471; Welch v. McGowan, 262 Mo. 709; Craine v. St. Ry., 264 Mo. 393; Oakley v. Richards, 275 Mo. 266; Bonanomi v. Purcell, 287 Mo. 436; Waldmann v. Const. Co., 289 Mo. 622; O'Neill v. St. Louis, 292 Mo. 656. (5) The giving of Instruction 1 at the instance of respondent was error justifying a reversal of the judgment. It was broader than the allegations of the petition and it authorized the jury to take into consideration, as a prerequisite to finding for respondent, and as an element of negligence on the part of appellant, a condition of the grating, namely, the absence of half of a slat at another point than that at which respondent was injured, and in no way connected with her injury. Hall v. Coal & Coke Co., 260 Mo. 351; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. 571; DeGonia v. Railroad, 224 Mo. 564; Hufft v. Railroad, 222 Mo. 286. (6) The verdict is unsupported by the evidence and the amount of it is unauthorized by any competent evidence possessing any probative force. It rests in part at least upon conjecture. The evidence of the doctors that the fall suffered by respondent could have caused the conditions which they found does not sustain the burden which the law imposed upon respondent of proving that the fall reasonably did cause those conditions. O'Leary v. Steel Co., 303 Mo. 363; Wood v. Railway, 181 Mo. 433.

Earl M. Pirkey for respondent.

(1) Where a master furnishes a place which is not reasonably safe and the servant uses it and is injured, the servant is not precluded from a recovery unless the danger was so glaring and imminent that an ordinarily prudent person in the exercise of ordinary care would not have stayed in the place. George v. Railroad, 225 Mo. 412; Shepard v. Transit Co., 189 Mo. 371; Jewell v. Bolt & Nut Co., 231 Mo. 201; Carter v. Baldwin, 107 Mo.App. 227; Wendler v. House Furn. Co., 165 Mo. 527. (2) The liability of a person charged with negligence does not depend on the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission. Buckner v. Horse & Mule Co., 221 Mo. 710; Hoepper v. Southern Hotel Co., 142 Mo. 388. (3) When a litigant objects to a hypothetical question, he should in his objection point out wherein he claims the hypothetical question is deficient. Where he does not do this and is called upon by opposing counsel to do so, and a willingness is expressed by such opposing counsel to meet any such objection and the objecting litigant fails to point out wherein he claims the question is deficient, his objection will be unavailing on appeal. Kinlen v. Railroad, 216 Mo. 173.

James T. Blair, P. J. All concur; Woodson, J., in whole opinion except what is said concerning case of O'Leary v. Scullin Steel Co.

OPINION

BLAIR

This is an appeal from a judgment for $ 10,000 for damages for injuries respondent alleges she received when she fell as a result of catching her foot in a hole in a grating on the floor of a room in which she was working in appellant's employ.

Appellant operates a hotel, and respondent worked in the fruit pantry with several other employees. Her duty was to prepare salads and place them upon an order-board, whence they were taken by waiters. The order-board ran along the north side of the pantry. Along the west side of the room there was a sink and a drain-board about six feet long. The floor in front of this was concrete, and on the floor at that place appellant maintained a grating, obviously to enable those using it to avoid water which might get on the concrete floor from the sink and drain-board and make it wet and slippery. This grating was about six feet long. It was made of thin wooden slats, about an inch and a half wide and about two feet long, which ran east and west and were nailed to wooden runners or cross-pieces which ran north and south. The slats were nailed on so that there was a space of about three quarters of an inch between each two of them. The height of the tops of the slats from the floor was about an inch and a half. About two feet from the south end of the grating one of these slats was missing. It seems it had been broken out. At any rate it was out. Next to this hole in the grating there were two sound slats, and then the next slat had been broken and one-half of it was missing. The holes left by the missing pieces were about three inches wide and one and one-half inches deep. There is substantial evidence that the grating had been in this condition at least since November, 1921. There was evidence that as a result of employees catching their feet in these holes several complaints of the condition of the grating had been made, some weeks before respondent's injury, to the persons in charge of the fruit pantry and of the work therein for appellant, and the danger of injury pointed out, and that those persons had promised to see to it.

The accident happened about 6 p. m. on the evening of April 7, 1922. This was a busy time, a "rush hour" in the work in the fruit pantry. In the course of her work it became respondent's duty to get some asparagus tips from the drain-board over the sink. She had in her hand a pan. The evidence tends to show that at this time Cecelia Bultel, who at times acted as forelady in the pantry, was seated on or in front of the drainboard and was eating supper and that she occupied a part of the space in such way that it was necessary for respondent to step upon the south end of the grating in order to reach the asparagus tips she sought. She did step upon that end of it and her foot became caught in the opening due to the absence of the whole slat, and she fell against the drain-board. Respondent knew the slat was missing, and the light at the time was good.

In view of questions raised some of her testimony will be set out a little more fully. She said that some weeks previously she had noticed the holes in the grating and had caught her foot in one of them and had notified all of the three persons in authority about it and had stated there was danger that "some of the girls were going to get hurt if it wasn't fixed." Others had complained. She said she received promises to notify the stewards in charge of the kitchen and pantry and was told the assistant steward had been notified. She testified she "looked where she was going" when she stepped upon the grating and thought she could "avoid stepping in there" and "tried to step by the side of the place where" the slat was broken out. She further testified she would go to the sink in the course of her work "fifty times" a day and, in doing so, step upon the grating; that when she approached it at the time she fell she stepped upon it with her right foot and that it was the one which was caught in the hole.

"Q. Now, you said that your right foot got caught on it at this time. A. It was.

"Q. Was that the first foot that you put up on there? A. Yes sir.

"Q. Now, when you put the right foot up on the grating just where did you put it? A. Well, I just started to put it, of course I thought I was stepping over the hole...