Geninazzi v. Leonori
| Citation | 233 S.W. 75 |
| Decision Date | 11 July 1921 |
| Docket Number | No. 16636.,16636. |
| Parties | GENINAZZI v. LEONORS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.
"Not to be officially published."
Action by Catherine Geninazzi against R. U. Leonora. Judgment for plaintiff, and defendant appeals. Reversed and cause certified to Supreme Court for final determination.
Cobbs & Logan and Albert E. Hausman, all of St. Louis, for appellant.
Kelley, Starke & Moser, of St. Louis, for respondent.
The petition charges that the defendant is the owner of an auction and storage room at 3615 Laclede avenue, in the city of St. Louis, at which place he is engaged in the business of buying and selling furniture; that he invited the public, including plaintiff, to enter his place of business, and that it was his duty to exercise reasonable care to keep his premises in a reasonably safe condition for persons using the same in pursuance of said invitation; that on the 13th of February, 1917, while the plaintiff was in the defendant's place of business as an invitee, and while attempting to go from one room to another, she was caused and permitted to fall down a stairway, whereby she sustained serious and permanent injuries. The petition charges that defendant was negligent, in that he caused and permitted said stairway and the stairs thereof to be in an unsafe and dangerous condition, in that said stairway and steps were dark and insufficiently lighted, so that plaintiff was unable, in the exercise of ordinary care, to see said stairway and steps and know the location thereof.
The answer was a general denial coupled with a plea of contributory negligence. Following the verdict of a jury judgment was rendered in favor of the plaintiff in the sum of $4,000, from which the defendant, following the usual preliminaries, has perfected an appeal to this court, contending that the evidence convicted the plaintiff of contributory negligence as a matter of law, and hence his peremptory instruction in the nature of a demurrer to the evidence should have been given.
At the close of plaintiff's evidence the defendant filed a demurrer thereto, but did not renew his demurrer at the close of the whole case. Defendant did not stand on his demurrer, but put in his evidence, and did not ask for a peremptory instruction at the close of all the evidence. Plaintiff's counsel contend that by reason of this situation the defendant has waived his demurrer, and that he cannot now contend on appeal that the evidence failed to make a case for the plaintiff. To this contention we do not agree. The only effect of the failure on the part of defendant to stand on his demurrer is that he thereafter has no right to ask that the demurrer be considered in the light of plaintiff's evidence alone, but that it must thereafter be considered in the light of all the evidence in the case.. Under such circumstances, even though plaintiff's evidence failed to make a case, if the defendant's evidence was such as to cure the defects in the case made by plaintiff, such evidence of the defendant must be considered in connection with plaintiff's evidence in determining the question. In other words, in considering the demurrer we must consider, not the plaintiff's evidence alone, but all the evidence in the case, in order to determine whether plaintiff made a case under the law. Klockenbrink v. St. Louis & Meramec River R. Co., 172 Mo. 678, 72 S. W. 900; Graefe v. Transit Co., 224 Mo. 232, loc. cit. 243, 123 S. W. 835; Weber v. Strobel, 236 Mo. 849, 139 S. W. 188; Battles v. United Railways Co., 178 Mo. app. 596, loc. cit. 613, 101 S. W. 614.
[] Viewing the evidence in the light most favorable to plaintiff, was she, as a matter of law, guilty of contributory negligence? If so, the court should have so declared by its instruction. The evidence in the case bearing on the question is found in plaintiff's testimony, and that adduced by the defendant did not in any way bear on this issue, but pertained only to the question as to whether or not the defendant was guilty of the primary act of negligence charged.
The premises referred to consisted of former dwelling remodeled for defendant's uses in his business. Adjoining this residence and to the north or rear thereof is constructed a large one-room building 85 feet wide by 100 feet long, in which the defendant displayed his goods for sale. The dwelling proper was also used for display rooms and as an office. The plaintiff and her friend, a Mrs. Simon, visited the defendant's place of business for the purpose of inspecting his goods with an idea of making purchases. At the time in question, about 2 o'clock in the afternoon of February 13, 1917, after inspecting some goods in the dwelling house proper, the plaintiff and Mrs. Simon followed a salesman of the defendant, Mr. Hertz, down a hallway which ran through the center of the old house through the back door and onto a platform which was in the large auction room referred to. The hallway leading to the auction room was dark, but there is no dispute in the evidence about the fact that the auction room proper in the rear of the old building was well lighted by a skylight and also by large windows on the sides. The platform referred to had a railing around it except on the west side thereof where there was a flight of five steps leading down to the floor of the auction room. The salesman, on reaching the platform referred to, proceeded westwardly over the platform until he reached the steps. He then descended the steps and was followed at a space of about 10 feet by the plaintiff, who upon reaching the top of the steps referred to fell down said steps to the floor of the room, receiving the injuries sued for.
Plaintiff testified that there was furniture piled to the north of the steps and also to the west thereof, which caused a shadow to fall on the steps, and she did not see them at the time she fell. It was also shown that there was an electric light over the steps which was not lighted at the time, but which light was subsequently turned on, and the steps were then plainly visible. According to plaintiff's evidence the fact that the steps could not be seen by her was due to the shadows cast by the piles of furniture. There was no question but what there was plenty of light in the room as a whole, but plaintiff contends that the steps themselves leading from the platform were insufficiently lighted. After reaching the platform referred to, the salesman being in front, with the plaintiff following at a distance of 10 feet, the salesman turned west, walked down the platform, and then down the steps, saying to plaintiff and Mrs. Simon, "Come this way." The plaintiff followed and saw the salesman descend the stairway, and plaintiff testified that she knew the steps were there, but did not see them at the time she fell because of the shadow cast by the furniture piled to the north and west of the stairway. Plaintiff walked towards the stairway, missed the top step, and fell to the bottom.
Plaintiff testified:
On cross-examination plaintiff testified:
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Geninazza v. R. U. Leonori Auction & Storage Co.
...Geninazza against R. U. Leonori Auction & Storage Company and another. Judgment for plaintiff was reversed by the Court of Appeals (233 S. W. 75), and cause certified to Supreme Court. Judgment for plaintiff Cobbs & Logan and Albert D. Hausman, all of St. Louis, for appellants. Kelley, Star......