Freeman v. Myron Green Cafeterias Co.
| Decision Date | 10 November 1958 |
| Docket Number | No. 45788,45788 |
| Citation | 317 S.W.2d 303 |
| Parties | Aileen V. FREEMAN, Appellant, v. MYRON GREEN CAFETERIAS COMPANY, a Corporation, Respondent. |
| Court | Missouri Supreme Court |
Clyde J. Linde, Robert B. Langworthy, Billy S. Sparks, Kansas City, for respondent. Langworthy, Matz & Linde, Kansas City, of counsel.
Arthur C. Popham, Sam Mandell, Lee D. Seelig, Kansas City, for appellant. Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel.
COIL, Commissioner.
Aileen Freeman, plaintiff below, fell and was injured as a result of catching the toe of her shoe under the leg of a clothes tree in defendant's cafeteria in Kansas City. Trial of her claim for $30,000 as damages for alleged injuries resulted in a defendant's verdict. She appealed from the ensuing judgment and contends the trial court erred in giving instruction 6. Defendant counters that the instruction was correct but that, in any event, plaintiff failed to make a submissible case as to defendant's negligence and that she was contributorily negligent as a matter of law. Inasmuch as we have decided that instruction 6 was reversibly erroneous, it is necessary that we first determine the contention that the trial court should have directed a defendant's verdict.
Plaintiff, 49 at trial time, was a customer in defendant's cafeteria in February 1954. She obtained food, proceeded to the balcony, placed her tray on a table, and hung her coat on a nearby clothes tree. The table at which she sat and the one immediately to the east were identical, rectangular-shaped tables with two chairs on each side. The north ends of those tables were flush against the north wall. Also at the north wall with at least one of its legs touching it, and apparently equidistant between the table at which plaintiff sat and the table to the east (which distance plaintiff estimated to be three feet), was the clothes tree in question.
While a picture of the lower part of the tree was in evidence, the description of it contained in defendant's answers to plaintiff's interrogatories is unsatisfactory and we are uncertain as to its dimensions. That answer was, Looking at the picture, we note there are four legs which are fastened to a center post and which legs appear to start at a place on that post about two or two and one half feet above the floor and which continue down the center post until near its bottom where each of the legs extends outwardly and downwardly in a concave curve until the end of each leg reaches and rests upon a knob or piece of wood which, as we understand, is one and one half inches high; thus, the end of each leg is elevated one and one-half inches above the floor. We also understand that each of the legs extends out from the center post for nine and one-half inches.
Mrs. Freeman was seated in the south chair on the east side of the table. She arose, pushed her chair under the table, turned to her right so that she was facing north, took a step toward the clothes tree, removed her coat therefrom, and, as she turned west, started to put it on when the toe of her right shoe caught under something which caused her to fall backward to the floor in the space between the tables. She realized as she lay on the floor and looked at the clothes tree that she had caught the toe of her right shoe under one of the protruding elevated legs.
Mrs. Freeman's coat was the only article on the clothes tree at the time and she apparently was the only person at either of the two tables we have described. Plaintiff had good eyesight. The lighting was adequate. The floor was covered with inlaid linoleum made of alternating squares of dark brown and tan. She had not theretofore been on defendant's balcony. The clothes tree did not move at any time. She had not seen the legs of the clothes tree prior to her fall. After her fall she noted that the clothes tree was a dark mahogany and that one of its legs rested upon one of the dark brown linoleum squares. She had never seen a clothes tree like that one. Most of those she had seen rested on flat bases.
Plaintiff's only witness, other than doctors, was an engineer who operated a testing laboratory. He testified that there were methods in customary use to provide for the hanging of clothing in public places in such a way that there were no legs or other protrusions over which patrons could trip.
Defendant adduced no evidence other than medical.
Defendant, as the operator of a restaurant, had the duty to exercise ordinary care to maintain his restaurant and its facilities in reasonably safe condition for the use of patrons exercising ordinary care. Consequently, defendant would not be liable if plaintiff's injury resulted from an obvious condition which, together with the consequences of disregarding it, was or should have been as well known to her as to defendant and, if the condition (and the consequences of disregarding it) which caused or contributed to cause the injury was one of which plaintiff must have been conscious if she had used her faculties, she cannot recover. Douglas v. Douglas, Mo., 255 S.W.2d 756, 757[2-5]; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390, 393[1, 2].
It is defendant's contention that the clothes tree was an ordinary coat rack in general use which had been placed against a wall in a well-lighted conspicuous place; that plaintiff, if she had used her faculties, was bound to have observed its presence and to have realized the consequences of ignoring it; and that, consequently, under the applicable rules, defendant was not negligent.
We think defendant has failed to recognize the difference between one's duty, as a matter of law, to see and observe an object as such and one's duty to observe in detail the construction of that object, and to recognize the consequences of disregarding the manner of that construction. So it is in the instant case that plaintiff had the duty, as a matter of law, to see the clothes tree and its position in the cafeteria, and it is apparent that she did see and observe the clothes tree sufficiently to have hung her coat upon it and to have removed her coat from it. Thus, as we see it, the debatable question is not whether she saw or must have seen the clothes tree as an object and must have recognized it as a commonplace object occupying a certain position on the floor, but whether, in the exercise of ordinary care, plaintiff was, as a matter of law, required, under all the circumstances in evidence, to also have observed that the clothes tree was so constructed that it had legs which each extended out from the center post for nine and one-half inches and each of which rested upon a wood block so that each leg was elevated one and one-half inches above the floor, and whether ordinary care also imperatively required that plaintiff must have recognized that such construction meant that she must take care to avoid getting close enough to the clothes tree to catch the toe of her shoe under an elevated protruding leg as she turned away after having removed her coat.
We agree with defendant that clothes trees generally are commonplace articles in widespread use. There was no evidence adduced, however, that clothes trees constructed as the instant one was are customarily used. And while we think it is common knowledge that clothes trees which rest upon the floor are in general use, we are not prepared to say that it is common knowledge that clothes trees of any particular construction are customarily used in restaurants. The only direct evidence on the subject was the testimony of plaintiff's witness Poisner, who said it would be 'unusual' if the legs of a clothes tree 'stuck out so some one could trip over them.' If defendant intended to invoke the rule sometimes stated that it could rely 'upon the sufficiency of a contrivance in common use, which, in the light of experience gained in common use, has been found to answer the purpose for which it was designed and intended,' provided its construction was not inherently dangerous, Walser v. Kuhlmann, Mo.App., 176 S.W.2d 658, 660[4, 5], suffice to say, without discussion of the rule as it might otherwise apply to the instant case, there was no evidence to support such a theory. See Baker v. Kansas City Terminal Ry. Co., Mo., 250 S.W.2d 999, 1002.
In our view, it was a jury question as to whether defendant exercised ordinary care in providing for patrons a clothes tree constructed as was instant one, i.e., it was for the jury to say whether defendant reasonably should have anticipated that customers exercising ordinary care in the use of that clothes tree would be likely to sustain some injury as a result of its construction.
While we have been considering whether there was a submissible case as to defendant's negligence, what we have said necessarily tends to relieve...
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