Fletcher v. North Mehornay Furniture Co.

• Decision Date: 11 July 1949
• Docket Number: 41199
• Parties: Margaret Fletcher, Respondent, v. North Mehornay Furniture Company, a Corporation, and Kansas City, Missouri, a Municipal Corporation, Appellants
• Court: Missouri Supreme Court

222 S.W.2d 789

359 Mo. 607

Margaret Fletcher, Respondent, v. North Mehornay Furniture Company, a Corporation, and Kansas City, Missouri, a Municipal Corporation, Appellants

No. 41199

Supreme Court of Missouri

July 11, 1949

Rehearing Denied September 12, 1949.

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed.

SYLLABUS

The facts and holding of the case are adequately summarized in headnote No. 2.

Lowell R. Johnson, Harold T. Van Dyke, Clem W. Fairchild and Johnson & Davis for appellant North Mehornay Furniture Company.

(1) There was no substantial and sufficient evidence from which the jury had the right to find that the defendant North Mehornay Furniture Company was negligent in any manner which caused plaintiff's fall and injury. Cameron v. Small, 182 S.W.2d 565; Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982; Paubel v. Hitz, 96 S.W.2d 369, 339 Mo. 274; Morgan v. Kroger Grocery & Baking Co., 154 S.W.2d 44; Sheridan v. City of St. Joseph, 110 S.W.2d 371; Schmoll v. National Shirt Shops of Mo., 193 S.W.2d 605; Tryon v. Chalmares, 200 N.Y.S. 362, 205 A.D. 816; Kline v. Abraham, 178 N.Y. 377, 70 N.E. 923; Mitcheltree v. Stair, 135 A.D. 210, 120 N.Y.S. 540. (2) Upon plaintiff's own evidence and the admitted facts the terrazzo portion of the sidewalk where the fall occurred was constructed under a permit granted by the City of Kansas City, Missouri, and was inspected and approved by Kansas City, Missouri, and the defendant North Mehornay Furniture Company owed no duty to the plaintiff or any other pedestrian using said public sidewalk to construct or maintain said sidewalk in a safe condition or in any particular condition and cannot be held liable in this action. Norton v. St. Louis, 11 S.W. 242, 97 Mo. 537; City of St. Louis v. Connecticut Mut. Life Ins. Co., 17 S.W. 637, 107 Mo. 92; Baustian v. Young, 53 S.W. 921, 152 Mo. 317; Wright v. Hines, 235 S.W. 831; Breen v. Johnson Bros. Drug Co., 248 S.W. 970; Callaway v. Newman Mercantile Co., 12 S.W.2d 491; Watts v. R.A. Long Bldg. Corp., 142 S.W.2d 98; Riley v. Woolf Bros., Inc., 159 S.W.2d 324.

David M. Proctor, City Counselor, John J. Cosgrove and T. James Conway, Assistant City Counselors, for appellant Kansas City, Missouri.

The trial court did not err in refusing to give a directed verdict as requested by North Mehornay Furniture Company at the close of all the evidence. The evidence shows that the Furniture Company was negligent in laying and maintaining a slippery terrazzo entrance to its store. State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d l.c. 675; Stith v. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Moore v. Monarch Gasoline & Oil Co., 35 S.W.2d 669; Paubel v. Hitz, 96 S.W.2d 369, 339 Mo. 274; Cameron v. Small, 182 S.W.2d 565.

Dwight Roberts and Ira B. Burns for respondent.

(1) Defendant North Mehornay Furniture Company is estopped from arguing any error in the overruling of its alleged motion to dismiss for a directed verdict at the end of the plaintiff's case because upon the record there is not sufficient foundation for such argument. Oganaso v. Mellow, 201 S.W.2d 365, 356 Mo. 228; Schubert v. St. Louis Pub. Serv. Co., 206 S.W.2d 708. (2) When abutting property owner or occupier makes an extraordinary or special use of the public sidewalk for his own convenience or purpose, he owes the duty to the public to exercise reasonable care to guard the public from injury and he may be liable for injuries to a member of the public which are sustained as the result of the conditions which he was instrumental in creating. State ex rel. v. Hostetter. 156 S.W.2d l.c. 675, 348 Mo. 841; Reedy v. St. Louis Brewing Assn., 61 S.W. 859, 161 Mo. 523; Berry v. Emery, Bird, Thayer Dry Goods Co., 211 S.W.2d l.c. 40; Lucas v. St. Louis & S. Ry., 73 S.W. 589, 174 Mo. 270; Cool v. Rohrbach, 21 S.W.2d 921. (3) Missouri courts distinguish between the duty which a landlord owes an invitee on his private premises and the duty he owes to the general public when he makes special use of a sidewalk. Paubel v. Hitz, 96 S.W.2d l.c. 373, 339 Mo. 274; Cameron v. Small, 182 S.W.2d l.c. 568; Cuddy v. Shell Petroleum Corp., 127 S.W.2d 24; State ex rel. v. Hostetter, supra; Smith v. St. Louis-S. F. Ry. Co., 275 S.W. 53; Cromarty v. Boston, 127 Mass. 329; Holmes v. Egy, 202 S.W.2d 87; Sheridan v. City of St. Joe, 110 S.W.2d 371, 232 Mo.App. 615; Barker v. Silverforb, 201 S.W.2d 408. (4) The defendant North Mehornay Furniture Company cannot escape liability for the unsafe condition of the terrazzo portion of the sidewalk because of any permits granted by Kansas City, Missouri.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action for damages for personal injuries sustained by a fall on a sidewalk in Kansas City. Verdict and judgment went for plaintiff for $ 10,000.00 against both defendants and they appealed. Hereinafter appellant North Mehornay Furniture Company will be referred to as Mehornay, and appellant Kansas City as City.

Appellant Mehornay assigns error on the refusal of its motion for a directed verdict at the close of the case, and on plaintiff's (respondent's) instruction No. 1. The City assigns error on respondent's instruction No. 1, and on an alleged excessive verdict.

Respondent fell about 9 a.m. November 25, 1946, while she was walking west on the south side of 11th Street in front of Mehornay's store at the southeast corner of 11th and McGee. Respondent alleged that Mehornay was negligent in that it had reconstructed a portion of the sidewalk in front of its store of a "marble or tile substance (terrazzo) which slanted and was smooth, slick, highly polished and glazed and when wet became slippery and was not reasonably safe for use by pedestrians to walk thereon"; she alleged that the City was negligent "in that it caused, allowed and permitted" Mehornay "to so construct said sidewalk and permitted same to remain in said unsafe condition for" more than a year; that both appellants "knew or by the exercise of the proper degree of care could have known that said sidewalk at said place was not reasonably safe for pedestrians to use"; that at the time respondent fell "said sidewalk was wet and thereby rendered slick and slippery."

Except admissions about which there is no dispute, Mehornay's separate answer was a general denial and a plea of contributory negligence. The City's answer was to the same effect. In Mehornay's charge of contributory negligence it is alleged that respondent's injuries, if any, "were caused or directly contributed to by her own negligence and inattention to her safety in that plaintiff passed along the sidewalk alongside this defendant's store at a time when the weather was snowy and rainy and the sidewalks, streets, and all exposed property were wet and covered with a slush of snow and ice without watching where she was stepping." The City, in its separate answer and for its charge of contributory negligence, alleged that any injuries respondent may have received "were directly caused by plaintiff's negligence in failing to use her eyes and senses in pursuing her course along the sidewalk."

Respondent submitted her case as to Mehornay in instruction No. 1 on the hypotheses (1) that this appellant, for its own extraordinary use, constructed the terrazzo portion of the sidewalk; (2) that the sidewalk was negligently constructed in that it "was slanted, slick, polished, and when wet became slippery, and because thereof was not reasonably safe for pedestrians." As to the City the jury was told in respondent's instruction No. 1 that it was the duty of the City to exercise ordinary care to keep and maintain the sidewalk where respondent fell in a reasonably safe condition for pedestrians, and that if found that the City knew or by the exercise of ordinary care could have known of the condition of the sidewalk as hypothesized in the submission as to Mehornay, etc. then a finding was directed in favor of respondent and against the City.

Respondent was 53 years old; she resided at the Drake Hotel, 1016 Locust Street, Kansas City, about two and a half blocks from the point where she fell. She was employed by the Hudnut Sales Corporation which sold cosmetics in the stores of others; her employer sold cosmetics in the Katz Drug Store at 12th and McGee Streets; this store was where she worked and she was on her way to work when she fell.

Respondent testified that on the morning of her fall she arose about 7 o'clock; saw snow on the tops of surrounding buildings; that it looked like it wasn't snowing; that she left the hotel without her umbrella; that she walked south on Locust to the north side of 11th Street; there got coffee in a restaurant; that "it started to mist" while she was in the restaurant; wind was from the south; that without her umbrella she knew her hair would get wet so to protect her hair, when she came out of the restaurant she crossed (south) to the south side of 11th Street; then walked west on 11th "close as I could" to the buildings. "While walking west I did not notice any ice; the streets were wet, but I was not slipping as I came along; I had not seen anyone slip; there was no snow on the sidewalk; when I had walked about three feet on the terrazzo (in front of Mehornay's store) both feet went out from under me and I fell; when I fell I was walking normally; was looking ahead; the terrazzo where I fell was wet and dirty and the streets were wet. The shoes I was wearing at the time had Cuban heels about two inches high; the heels had a leather finish, no rubber. I had probably walked on the south side of 11th there before; I had been in Mehornay's store a few times."

The sidewalk on the south side of 11th Street along which respondent walked, until she...