Frazier v. Mace-Ryer Co.
| Decision Date | 31 January 1938 |
| Citation | 114 S.W.2d 150,232 Mo.App. 811 |
| Parties | HELEN FRAZIER, RESPONDENT, v. MACE-RYER COMPANY, A CORPORATION, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Daniel E Bird, Judge.
AFFIRMED.
Judgment affirmed.
Duvaul P. Strother, Rufus A. Bailey, Thomas F. Wells and John L Kirkpatrick for respondent.
Madden Freeman & Madden for appellant.
This is an action for damages for alleged personal injuries that the plaintiff alleges she received in a fall on the floor in the defendant's retail store at 1120-22 Grand Avenue, Kansas City, Jackson County, Missouri. It is alleged by plaintiff that the fall on the floor occurred about 4 P. M., Nov. 5, 1935, while plaintiff was in said store for the purpose of inspection and purchase of merchandise.
The negligence charge, upon which the cause was tried in the circuit court, is expressed in plaintiff's petition as follows:
"Plaintiff further states that each and all of her said injuries were directly and proximately caused by the negligence and carelessness of the defendant, its agents, servants and employes in this, to-wit: that defendant was negligent in allowing and permitting the floor of its showroom to become slick and slippery in spots because of a floor dressing of a greasy and oily nature having been placed upon and spread over the surface of the floor, which rendered said floor unsafe and dangerous for plaintiff and others walking thereupon, which slick and slippery, unsafe and dangerous condition of said floor was well known to the defendant, or by the exercise of ordinary care and caution could have been known to the defendant in sufficient time to have been remedied by eliminating a sufficient portion of said floor dressing, thereby eliminating said slick and slippery, unsafe and dangerous condition and have thereby avoided plaintiff's injuries, all of which defendant, its agents, servants and employes negligently and carelessly failed to do."
The defendant's answer, after pleading by way of general denial, contains the following:
"Further answering, defendant states that if the plaintiff was injured at the time and place mentioned in the plaintiff's petition, which defendant denies, said injury was caused and/or contributed to by the plaintiff's own negligence in failing to exercise ordinary care for her own safety, and was further caused and/or contributed to by the plaintiff's own negligence in failing to use her sense of sight and her other senses in view of all the facts and circumstances then and there existing."
Plaintiff filed a general denial to the allegation of defendant's answer.
Trial was before jury and verdict was for plaintiff in the sum of $ 1,000.00.
Judgment was duly had and entered for $ 1,000.00 and defendant duly appealed.
We will continue to refer to appellant as defendant, and respondent as plaintiff.
The defendant, in its statement in brief filed, very clearly sets forth its contention and clearly sets forth the questions we are called upon to review.
"The sole question presented is the sufficiency of the evidence to warrant the submission of the cause to the jury or to warrant the giving of Instruction No. 1, an instruction given on behalf of the plaintiff."
We have set forth above the negligence charged in plaintiff's petition and conclude that the plaintiff has plead facts that, if true, present a statement of a cause of action against defendant. In determining the question of sufficiency of evidence to present an issue for the jury, we consider the evidence in its most favorable light to plaintiff and, if there is shown substantial evidence in support of the allegations of negligence, we are bound to the conclusion that plaintiff met the requirements of a submissible case.
The evidence seems to be conclusively to the effect that plaintiff, while walking on the floor, slipped and fell. Plaintiff testified that in her fall she made a V-shaped mark on the floor where she fell.
As to the res, the following questions and answers appear in plaintiff's testimony, to-wit:
As to the condition of the floor, the following questions and answers appear in plaintiff's testimony, to-wit:
A Mrs. Sawyer, who was with the plaintiff at the time of the fall, was called as a witness by plaintiff. In the course of the examination of Mrs. Sawyer, the following questions and answers appear, to-wit:
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