Garfinkel v. B. Nugent & Bro. Dry Goods Co.

• Decision Date: 04 March 1930
• Docket Number: No. 20953.,20953.
• Citation: 25 S.W.2d 122
• Court: Missouri Court of Appeals
• Parties: GARFINKEL v. B. NUGENT & BRO. DRY GOODS CO.

25 S.W.2d 122

GARFINKEL v. B. NUGENT & BRO. DRY GOODS CO.

No. 20953.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by Emma Garfinkel against the B. Nugent & Bro. Dry Goods Company, a corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

Holland, Lashly & Donnell, of St. Louis, for appellant.

Mark D. Eagleton, James A. Waechter, and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

BECKER, J.

In her action for personal injuries alleged to have been sustained by plaintiff, occasioned by the negligence of defendant, she obtained judgment for $7,500, and the case is here on defendant's appeal.

Plaintiff's second amended petition alleges that defendant is a corporation maintaining a department store in the city of St. Louis; that plaintiff, on the 13th day of October, 1921, pursuant to defendant's general invitation, was upon defendant's premises with the intention of purchasing some rugs; that at the time defendant displayed and sold linoleum and that there was a roll of linoleum standing on end, and that, while plaintiff was walking near by, said roll of linoleum fell and struck her, through and as a direct and proximate result of the negligence and carelessness of defendant, thereby causing plaintiff to be seriously and permanently injured.

The answer is a general denial, coupled with the averment that plaintiff's injuries, if any, were caused by the failure of plaintiff to exercise ordinary care to walk down an aisle of defendant's store, and that plaintiff negligently walked against, struck, and knocked down a roll of congoleum.

The reply put in issue the new matter in the answer.

The evidence adduced by plaintiff tended to show that on the day in question, accompanied by a friend, a Mrs. Traube, she entered defendant's store to look at some rugs and went by elevator to the fourth floor where a salesman, upon inquiry, offered to direct her to the rug department. Said salesman took the lead, Mrs. Traube walked next behind him, and plaintiff in turn followed back of Mrs. Traube. As plaintiff walked along, something struck her on the top of her head, knocking her down; when she got up she looked around and saw a large roll of linoleum some 12 feet in height and a foot in diameter lying on the floor next to her. Defendant's salesman picked her up and inquired whether she was hurt or needed medical aid. Plaintiff replied that she thought that she would soon be all right. Two of defendant's employees came and lifted the roll of linoleum up off the floor.

For the defendant Bella J. Liston testified that on the day in question she was in the employ of the defendant as employment superintendent and saw plaintiff and Mrs. Traube come into the rug department and walk down the main aisle, which was some ten or twelve feet wide. There were posts along the side of this aisle, and congoleum rugs were standing up on end resting against these posts, "and I noticed as Mrs. Garfinkel passed the congoleum rug that was resting against the post that her right shoulder brushed against it and she immediately put up her hand. I judge it fell three or four feet. Just leaned against her; it came down right to her side. It brushed against the side of her head. * * * It absolutely did not fall to the floor. She supported the rug and the salesman on the floor immediately went to her assistance and so did I. The salesman supported the rug and she walked away from it. * * *"

On cross-examination she testified: "There are posts on both sides of the aisle down the center of the department and these congoleum rugs were just standing up loose against the posts. * * * There wasn't anything there to support it or stop it from falling. It was placed loose against the pole and when she brushed against it, it fell. * * * She got hurt on the right shoulder. * * *"

Charles Forster, a witness for defendant, testified that he was in charge of the linoleum and rug department for the defendant company, and was present in the rug department when plaintiff and Mrs. Traube came in; that at that time "we had an aisle there that was about 8 feet wide and then where these congoleum rugs were standing was right next to four-yard wide linoleum with a space of about 2 feet between the congoleum rugs and the four-yard wide linoleum, and then Mrs. Garfinkel and this lady went through that small passageway. It was in this small passageway that the accident occurred. They had come down through the wide aisle going north. They turned to the left in order to go through that passageway; that is they were going west. Our merchandise was standing up along that post. As they went by that post Mrs. Garfinkel brushed against the congoleum rug which was standing there by the post. * * * After it came down I don't recall if it hit her head or just her shoulder but anyway she turned just at the time it fell. * * * After she brushed it she turned around, looked up and caught it. The rug did not strike the floor. I was the first one up to Mrs. Garfinkel on account of being in back of her. I asked her if she was hurt and she said `no.' * * * She just had a little headache. * * * There were other rugs standing there with it. They were stacked straight up along the side of the post."

On cross-examination he stated that the congoleum rug "was about 9 feet standing up and it rolled up about a foot and was loose against the post adjoining the aisle. * * * It was not right adjoining the 8 foot aisle, it was adjoining the small passageway. It is very unusual for a customer to walk down that two foot passageway because there is other merchandise standing in front of them. * * * I made a report of the accident that day."

The first assignment of error pertains to the action of the court in refusing defendant's instruction in the nature of a demurrer to the evidence offered at the close of the entire case. This assignment proceeds upon the theory that said instruction should have been given, because there was no testimony in the case showing or tending to show that the fall of the roll of congoleum or linoleum was caused by any negligence on the part of the defendant.

What the situation may have been at the close of plaintiff's case is not before us, in that the defendant adduced testimony and renewed its demurrer at the close of the entire case. In this situation the evidence adduced on behalf of plaintiff, 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 defendant's evidence must be taken as false where it is contradicted by that of plaintiff. Plaintiff is entitled also to the benefit of any favorable testimony adduced by defendant's witnesses, and any unfavorable testimony given by defendant's witnesses, which is contradicted by that of plaintiff's witnesses, must be disregarded. Furthermore, plaintiff is entitled to the benefit of every reasonable inference favorable to her case, which the evidence tends to support. Wair v. Car & Foundry Co. (Mo. App.) 285 S. W. 155; Williams v. K. C. Ry. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Ry. 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. Ry. Co., 197 Mo. App. 169, 193 S. W. 43; ...