FW Woolworth Co. v. Carriker

• Decision Date: 17 November 1939
• Docket Number: No. 11193.,11193.
• Citation: 107 F.2d 689
• Parties: F. W. WOOLWORTH CO. v. CARRIKER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

107 F.2d 689 (1939)

F. W. WOOLWORTH CO. v. CARRIKER et al.

No. 11193.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1939.

Lon O. Hocker, of St. Louis, Mo. (James C. Jones, Jr., Case, Voyles & Stemmler, and Jones, Hocker, Gladney & Grand, all of St. Louis, Mo., on the brief), for appellant.

Roberts P. Elam, of St. Louis, Mo. (Mark D. Eagleton and Eagleton, Waechter, Yost, Elam & Clark, all of St. Louis, Mo., on the brief), for appellees.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

STONE, Circuit Judge.

From a judgment on verdict in a personal injury case defendant brings this appeal.

The only matter presented here is the sufficiency of the evidence to authorize submission of the case to the jury. At the conclusion of the evidence for the plaintiff, defendant filed a motion for an instructed verdict, as follows:

"At the close of the evidence on behalf of plaintiffs, defendant moves the court to charge the jury that under the law and the evidence herein, plaintiffs have failed to make a submissible case against defendant, and the verdict must be in defendant's favor, for the following reasons:

"(1) Because the evidence fails to show any breach of duty owed by defendant to plaintiff Carriker;

"(2) because the condition of the floor of the passageway mentioned in evidence, and where plaintiff Carriker was injured, is shown by the evidence to have been as well known to him as to defendant, and there was therefore no duty upon defendant to warn Carriker of such condition;

"(3) because the condition of the floor of said passageway was open and obvious instead of being latent and hidden, and defendant's knowledge of such condition was in no way superior to that of plaintiff Carriker. Wherefore, defendant owed plaintiff Carriker no duty in the premises."

It is the denial of this instruction which is here urged as error. This issue requires an examination of the evidence under the issues made by the pleadings.

The allegations of the petition are that early on the morning of June 29, 1935, plaintiff went to deliver crates of milk to the defendant; that while walking through a basement corridor or passageway carrying the milk to the place where it was to be left he stepped into "grease, slush, dirt and other slimy and slippery substances on the floor" thereof which was near a perforated drain in the corridor and as a result slipped and fell sustaining injuries. The grounds of negligence set forth are as follows:

"(1) Defendant negligently and carelessly caused, suffered and permitted said grease, slush, dirt and other slimy and slippery substances to be and remain on the floor of said corridor, or passageway, where the same was rendered unsafe, dangerous and not reasonably safe for persons using and walking upon said floor, particularly plaintiff Carriker.

"(2) Defendant knew, or by the exercise of ordinary care, could and should have known of the presence of said grease, slush, dirt and other slimy and slippery substances upon the floor of said corridor, or passageway, and defendant knew, or by the exercise of ordinary care, could and should have known that the floor of said corridor, or passageway, was thus and thereby rendered unsafe, dangerous and not reasonably safe for persons using and walking upon said floor, particularly plaintiff Carriker, in time thereafter, by the exercise of ordinary care, to have remedied said unsafe, dangerous and not reasonably safe condition, and thus and thereby avoided the injury to plaintiff Carriker, but that defendant negligently and carelessly failed so to do.

"(3) Defendant negligently and carelessly failed and omitted to warn plaintiff Carriker of the presence of said grease, slush, dirt and other slimy and slippery substances, and of the unsafe and dangerous condition of said corridor, or passageway, created thereby."

The only evidence as to the accident was by plaintiff and Edwin Hipp, who was at the time employed by the defendant as a baker. The evidence of plaintiff was that he had been delivering this milk for some fifteen or eighteen years to this store of defendant; that in making such delivery it was necessary for him to carry the milk along an aisle or passageway in the basement of the building. This aisle was floored with dark grey concrete. At one point in the aisle there was a sewer drain opening covered by a perforated iron plate about ten inches in diameter. About 6:30 in the morning of June 29th, he walked along this aisle carrying a case of thirty half pint bottles under his left arm and a similar case, by a handhold, in his right hand. The light in the aisle way was rather dim at the time. He could see plainly what was on either side of him but the reflection of the floor was such that he noticed no difference in color between the slimy substance around the drain opening (extending about a foot therefrom) and the floor. Without seeing this substance he stepped therein and slipped causing his fall. The concrete flooring and drain hole had been there for eight or ten years during which he was familiar with the situation and had never before found anything on the floor. When he fell he discovered that the substance causing his fall "looked like dirt and soap and greasy water that the floors had been scrubbed with and poured there. Dirty, greasy, slimy water." The substance "was practically the same color as the dark grey concrete floor — was so near the same color that from the reflection of the light that I got there, I could not distinguish the difference without going down and examining it." No one was present when he fell but immediately thereafter two cooks, who were in the basement, hurried to him and helped him up.

The testimony of Hipp was that he was a baker employed by defendant and working in the basement. He came to the basement at five minutes of four o'clock that morning, as usual. While walking along the same aisle going to his place of work he slipped in this substance around the drain. He describes the substance as "slushy matter" and as "grease — soap" and again as "It was not water. It was a greasy, slimy substance" thicker than soap suds and of a brownish color. The light was "kind of dim light." He could not have seen the slush just walking along but could see it after his attention was attracted to it. The only other persons on the premises were two cooks and a watchman at the rear entrance on the first floor where plaintiff came into the building.

The trial court denied the requested peremptory instruction but, in the charge to the jury, withdrew from the jury the first ground of negligence alleged in the petition which was that "defendant negligently and carelessly caused, suffered and permitted said grease, slush, dirt and other slimy and slippery substances to be and remain on the floor * * *." He submitted the case on the two other grounds which were knowledge of the unsafe condition in time to remedy the same and failure to warn plaintiff of the danger.

The sufficiency of the evidence is challenged by appellant in one respect only. That is as to proof of knowledge of the appellant of the slippery condition of the floor either in time to remedy that condition or to warn appellee thereof.

Appellee contends (1) that such knowledge (actual or constructive) existed and, (2) that the evidence justified recovery on the ground — withdrawn in the charge — that the presence of the slippery substance was caused and produced by appellant. Another and important contention of appellee is that the propriety of the ruling upon the requested peremptory instruction must be determined "in the light of the record as it stood when that motion was presented, and not in the light of the record as it was subsequently made." From its nature and the fact situation here, the last contention of appellee requires examination before we go into the sufficiency of the evidence.

I. Record to be Considered.

The record to be considered in determination of the sufficiency of the evidence becomes important here because of the situation following. Appellant presents its case on the theory that the court submitted the case under a charge requiring the jury to find, as a necessary element of liability, knowledge of appellant respecting the slippery floor condition in time either to have remedied the condition or to have warned appellee thereof, and that there was no evidence such knowledge existed. In addition to contending that such actual or constructive knowledge existed, appellee contends that there was evidence sufficient to justify submission to the jury of the first ground of negligence, which the court withdrew from the jury in the charge given. From these contentions arises the situation where appellant is seeking to have the sufficiency of the evidence determined in the light of the charge given while appellee deems the charge to have no bearing upon such sufficiency. The issue is, therefore, whether the charge to the jury is to be considered in determining the sufficiency of the evidence.

A general verdict of a jury is the composite result of the facts found by the jury and the law as given to the jury in the charge. Where there are no exceptions to a statement as to the law in the charge, this Court has repeatedly held that such statement becomes the law of the case for purposes of an appeal. Ocean Accident & Guarantee Corporation v. Moore, 8 Cir., 85 F.2d 369, 371; United States v. Hossmann, 8 Cir., 84 F.2d 808, 810; Aetna Casualty &...