Farrell v. Kroger Grocer & Baking Co.

• Decision Date: 05 June 1934
• Docket Number: No. 22906.,22906.
• Citation: 71 S.W.2d 1076
• Court: Missouri Court of Appeals
• Parties: FARRELL v. KROGER GROCER & BAKING CO.

71 S.W.2d 1076

FARRELL v. KROGER GROCER & BAKING CO.

No. 22906.

St. Louis Court of Appeals. Missouri.

June 5, 1934.

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

"Not to be published in State Reports."

Action by Cora Farrell against the Kroger Grocer & Baking Company. From an adverse judgment, defendant appeals.

Reversed and remanded.

Green, Henry & Remmers, of St. Louis, for appellant.

Everett Hullverson, of St. Louis, for respondent.

BECKER, Judge.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff as the result of her slipping and falling upon the floor in defendant's store while she was a customer therein. There were two defendants, Piggly Wiggly Stores, Incorporated, and Kroger Grocer & Baking Company, a corporation, but upon a trial of the case, and at the close of plaintiff's evidence, the cause was dismissed by the plaintiff as to the defendant Piggly Wiggly Stores, Incorporated, leaving the Kroger Grocer & Baking Company as sole defendant. The trial of the case resulted in a verdict in favor of the plaintiff, assessing her damages at the sum of $3,000. In due course the defendant appeals.

The amended petition upon which the case was tried alleged in substance that the defendant was engaged in the retail grocer business in the city of St. Louis, operating various stores, one of them located at 5964 Easton avenue; that on December 18, 1930, plaintiff was a customer in said store and while walking therein fell upon the floor, as the direct result of defendant's negligence. The amended petition sets out four assignments of negligence, among them that of carelessly causing and permitting the floor to be unsafe and dangerous in that the defendant did cause, suffer, and permit cream, milk, and other substances to be and to remain on said floor, all of which defendant knew or by the exercise of ordinary care would have known in time to have remedied the said condition. Defendant's answer was a general denial.

Plaintiff's case was submitted to the jury upon the theory that there had been substantial testimony adduced which if believed tended to show that the defendant's store had been opened on the day in question at 7:15 o'clock; that plaintiff entered the store as a customer at 8 o'clock or shortly thereafter; that plaintiff walked down the aisle to the end of the store to the butcher department and bought some meat; that she then retraced her steps up the aisle a short distance, and when she had gotten immediately in front of the ice box, where she intended to get some butter, her left foot "went under" her and plaintiff fell backwards to the floor; that plaintiff was caused to fall because some cream had been spilled in front of the ice box that morning which defendant's servants had failed to clean up.

We note first the assignment of error that the evidence in the case was wholly insufficient on which to base a recovery in plaintiff's favor as against defendant, in that there was no testimony whatever in the record that milk, cream, or other foreign substance was seen on the floor of defendant's place of business at the point where plaintiff fell, and that, therefore, the trial court erred in not peremptorily instructing the jury to return a verdict in favor of the defendant at the close of plaintiff's case and again at the close of all of the evidence.

We have read the record carefully, having in mind that upon demurrer plaintiff's evidence, whether contradicted or not, must be regarded as true, so long as it is not impossible as opposed to the physics of the case or entirely beyond reason, and that defendant's evidence must be taken as false where it is contradicted by that of plaintiff. Furthermore, plaintiff is entitled to the benefit of every reasonable inference favorable to her case, which the evidence tends to support. Wair v. American Car & Foundry Co. (Mo. App.) 285 S. W. 155; Williams v. Kansas City Southern R. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Met St. R. Co., 243 Mo. 305, 147 S. W. 1032; Van Raalte v. Graff, 299 Mo. 513, 253 S. W. 220; Peters v. Lusk, 200 Mo. App. 372, 206 S. W. 250; Dawson v. Chicago, B. & Q. R. Co., 197 Mo. App. 169, 193 S. W. 43; Conley v. Lafayette Motor Car Co., 204 Mo. App. 37, 221 S. W. 165.

Upon the evidence adduced, read in light of the rule above, we are constrained to the view that plaintiff made out a case for the jury.

It is true that plaintiff herself testified that after she had fallen and had been picked up by the manager of the store and one of the employees, she saw nothing upon the floor at the place where she fell. She did testify, however, that while the manager of the store was aiding her to arise, she said to him, "my goodness, what did you have on the floor to make me fall?" and that the manager of the store answered, "I am sorry. There was some cream spilled here this morning and we didn't have a chance to clean that up. I am very sorry you fell." That the manager of the store took her to her home in his automobile, and that she examined her coat which she was wearing and found that it "was all wet with a sticky, wet substance."

The following testimony adduced on behalf of the defendant must be considered as an aid to plaintiff's case, namely, the testimony of Paul A. Mills, the manager of the defendant's store at the time plaintiff fell. He testified that they had opened the store at 7:15 o'clock that morning and that plaintiff was the first customer to come into the store, arriving between 7:30 and 8 o'clock; that on that morning he had a boy come in to help him, a boy who went to school in the daytime and whom he usually had to help him in the afternoon after school; that he had the boy "come down this morning because I was behind in my work a little bit, and he was in back. Naturally, we have our vegetables in the rear and they have to be worked over and I was in the rear trimming vegetables and he was weighing up merchandise and we heard the turnstile click and we knew some one came in, but we didn't bother to see because they usually came around to the ice box and we would check them up at the checking counter, and we heard a racket, it sounded like some one had fallen; and he was in front of me. When I got there he was helping this lady to her feet and I helped him pick her up."

On cross-examination, with reference to the boy whom he had helping him that morning, Mills was asked:

"Q. And you had him that morning because you were behind in your work and you were rushing to catch up? A. I had some weighing to do.

"Q. You said you were behind in this work, so you had this boy come down? That is what you said on your direct examination. That is right, isn't it? A. Yes, sir.

"Q. Yes. And the vegetables that you worked on, you have those vegetables in the back end of the store, don't you? A. Yes, sir. * * *

"Q. Now, what were you behind with the work about? A. Weighing up merchandise."

Mills further testified that the floor had not been swept up that morning, but had been swept up the night before when they closed the store shortly after 6 o'clock. He was shown a photograph of the interior of the store, showing the ice box in which the milk, cream, butter, and eggs were kept, and Mills placed a mark on the floor in this picture indicating where plaintiff had fallen, and he was asked the question whether that mark "is right opposite to where the cream is in the ice box?" and he answered, "Yes, sir."

"Q. You hadn't been around there that morning? A. I had come in the front of the store. * * *

"Q. That is the only time you were around there? A. Yes, sir. * * *

"Q. There was a skid mark where her foot slipped there? A. Yes, sir.

"Q. Did you see that? A. Yes, sir.

"Q. About how long was that skid mark? A. I didn't measure it; two or three inches. * * *

"Q. I say, before she fell you didn't know whether there was any grease or milk or anything of that sort on the floor, do you? A. No, sir.

"Q. But you did look around afterwards to see if there was anything? A. Yes; I looked around afterwards.

"Q. You did not look at her coat, I believe you said? A. No, sir."

The deposition of Carl L. Schumacher was read in evidence. It discloses that Schumacher attended school and worked in the store outside of school hours; that sometimes, if they had extra work to do, he went down to the store in the morning, "otherwise I just worked in the afternoon." According to his deposition, when plaintiff fell, he was in back of the ice box weighing up some merchandise, and the manager was near him trimming vegetables. It was "around eight o'clock" when plaintiff came in and bought some meat; he heard a scream; he ran out and picked up plaintiff. To the question, "You didn't know whether she slipped on anything or not, then, do you?" he answered, "I do not."

"Q. Who has charge of cleaning the floor? A. I do.

"Q. Did you clean the floor that morning? A. I cleaned it that night; yes; we swept every night.

"Q. That night before? A. Yes, sir."

He stated that the store opened at 7:15 that morning and was asked:

"Q. This accident happened about eight o'clock? A. I think it was around eight.

"Q. So you were all working around there around forty-five minutes before she came in, is that right? A. Working in the back room; not out in the store.

"Q. What kind of work were you doing in the back room? A. I was weighing up beans.

"Q. What were the other two men doing? A. The butcher was in his side, putting in his meat case, and the manager was trimming vegetables in the back room."

The following was read from his redirect examination:

"Q. What would you sweep up? A. Sweep up the dirt.

"Q. What kind of dirt? A. Dust, from people walking in the store; that is all.

"Q. Pieces of vegetables, leaves, paper? A. Was not much of that.

"Q. Meat, anything else that happened to get on the floor, wouldn't you? A....