Falder v. B. Nugent & Bro. Dry Goods Co.

• Decision Date: 03 April 1923
• Docket Number: No. 16785.,16785.
• Citation: 251 S.W. 138
• Parties: FALDER v. B. NUGENT & BRO. DRY GOODS CO.
• Court: Missouri Court of Appeals

251 S.W. 138

FALDER v. B. NUGENT & BRO. DRY GOODS CO.

No. 16785.

St. Louis Court of Appeals, Missouri.

April 3, 1923.

Rehearing Denied May 25, 1923.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by Simon N. Falder, executor, against B. Nugent & Bro. Dry Goods Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

M. U. Hayden, of St. Louis, for appellant. Edward W. Foristel, of St. Louis, for respondent.

BIGGS, C.

Upon a rehearing granted after an opinion, this cause has been reargued and resubmitted. In the meantime plaintiff died, and the cause has been duly revived in the name of Simon N. Falder, executor under the will of Estelle Falder, deceased.

Plaintiff obtained judgment against defendant for personal injuries occasioned by falling down a certain stairway maintained by defendant in its department store in the city of St. Louis. It is conceded that at the time plaintiff received her injuries on May 2, 1917, she was an invitee upon the premises of defendant, and that the defendant was under the duty of exercising ordinary care to keep the premises in a reasonably safe condition for her use. The negligence charged and on which the plaintiff relies is:

"In failing to keep said stairway in a reasonably safe condition for the use of defendant's customers, and particularly plaintiff, in this: That the rubber pads on said stairway were allowed to be and remain in a worn, loose, dangerous, and unsafe condition after the defendant knew, or by the exercise of ordinary care could have known, of said worn, loose, dangerous, and unsafe condition, and that when the defendant knew, or by the use of ordinary care, could have known, that plaintiff and others using said stairway were likely to trip and fall on such worn, loose, dangerous, and unsafe rubber pads on said stairway, and likely to be injured thereby."

The petition further alleged that on May 2, 1917, while plaintiff was descending said stairway, and without any fault or negligence on her part, her foot was caught and caused to slip on a rubber pad tacked or fastened upon one of the steps of said stairway, which said rubber pad had become so worn and loosened that her foot was caught therein by reason of the condition of said pad, and plaintiff was violently thrown to the floor below, which resulted in her injuries.

Defendant appeals from a judgment for the sum of $4,000, and asserts that the evidence was insufficient to establish the negligence charged, and therefore its demurrer to the evidence at the close of plaintiff's case and at the close of all the evidence should have been given. Error is also assigned in the giving of plaintiff's instruction on liability.

Defendant not having stood on its demurrrer offered at the close of plaintiff's case, but having put in its evidence, the case must now be judged by all the evidence in determining the question of liability, and such evidence must be viewed in a light favorable to plaintiff, and she is entitled to the benefit of every reasonable inference of fact arising on all the proof. The questions of the credibility of the witnesses, the weight to be given their testimony, and the existing discrepancies and contradictions in the testimony are for the jury.

Plaintiff testified that she was in the store prior to the day on which she was injured, and that she noticed the condition of the rubber pads which covered the stairway at that time, and stated that they were tacked quite far apart, and inclined to bulge between the tacks; that they would bulge in between the tacks, and they were worn and rough and curled at the ends. Plaintiff was unable to state the exact time which she noticed this condition of the rubber pads, in one place stating that it was a week or 10 days before the day of her injuries, and it another place her best recollection was that it was on April 30th, which would make it 3 days before her injuries. Plaintiff was unable to state the condition of the stairway on the day she was injured, as she did not notice their condition at that time.

Defendant placed upon the stand Miss Ward, a former employé of the defendant. She gave testimony upon cross-examination by plaintiff's counsel which it is contended aids plaintiff's case in reference to the condition of the rubber pads on the stairway. Miss Ward was employed in a department of defendant's business near the stairway. The witness testified as follows:

"Q. Miss Ward, will you describe those rubber treads across there, please? How were they fastened on the steps? A. Well, they were tacked. Q. Tacked? A. Yes, sir. Q. Was there any metal strip or anything of that sort around in front? A. I don't think so. I never noticed it. Q. And what was the condition of the rear? Was it tacked in the rear or not? A. Well, I guess—yes, it was tacked, but I couldn't tell you how many tacks; I think about four or five tacks. Q. You think there were four or five tacks in the rear? A. Yes. Q. And do you know how long that rubber had been there? A. No, sir. Q. How long had you been there? A. Two years. Q. Had that been there all the time you were there? A. Well, I couldn't tell you. Q. Had you ever noticed any change in it, in two years? A. No; I had not. Q. You never noticed any change. Miss Ward, isn't it a fact that the rear end of that rubber was bulged up between the tacks; isn't that a fact?

"Mr. Hayden: Just a minute. Let us fix the time.

"Questions by Mr. Foristel: Q. About this time, the time of the accident? A. Well, I couldn't tell you that. I don't know whether it was bulged or not. Q. You saw those steps, now, didn't you? A. Yes. Q. And you don't want to tell this jury that between these tacks this rubber was not bulged, do you? A. Well, I guess, like all rubber does. Q. Like all rubber does, after it had been used, and you mean like all rubber does, that it did bulge some? A. Well, yes.: Isn't that true? A. Yes; guess so."

Here defendant's counsel attempted to have the court strike out the last answer given, but the court failed to rule on the motion. Thereupon the following occurred:

"The Court: Just state positively, if you know, lady. Be more positive in your answer. "Questions by Mr. Foristel: Q. Isn't that a fact, Miss Ward, that, between the tacks, just as you say all rubber does, after it has been used—isn't that what you said, that all of the rubber bulges between the tacks on steps with rubber treads on them? A. Yes, sir; it does. Q. And this was in the same condition, bulged up between the tacks? A. Well, sure it was.

"Mr. Anderson: Did you fix the time on that? "Mr. Foristel: The day of the accident. That is all."

Redirect examination:

"Q. Did you make any examination of those steps that day, Miss Ward? A. No; I never. Q. So you don't know whether it was bulged that day or not? A. Well, didn't make an examination after the fall.

"Mr. Anderson: That is all."

Recross-examination:

"Well you had seen it there every day? A. (interrupting). Well, they never made any changes while I was there. Q. You never saw it—

"Mr. Anderson: I move that be stricken out. It is not responsive.

"Questions by Mr. Foristel: Q. You had seen the condition of those stairs all the time you were there, did you not, including the day of the accident? A. Yes. Q. And on this day they were in the same condition they had always been in before that? A. Yes; because I didn't see any one working on them that day.

"Mr. Anderson: I ask that be stricken out, as not responsive.

"Mr. Foristel: Not at all. The last part may be stricken out.

"The Court: The last part may be stricken out.

"To which action and ruling of the court the defendant, by its counsel, at the time duly objected and excepted, and still continues to object and except."

Second redirect examination:

"Q. You don't know whether they worked on the steps or not? They might have been working when you were not looking? A. Why, yes. Q. How often during the day would you see those steps? A. We were always looking over that way. Q. Was there anything in between your...