Gilpin v. Gerbes Supermarket, Inc., 53901

• Decision Date: 10 November 1969
• Docket Number: No. 53901,53901
• Citation: 446 S.W.2d 615
• Parties: Myrtle GILPIN, Plaintiff-Appellant, v. GERBES SUPERMARKET, INC., Defendant-Respondent.
• Court: Missouri Supreme Court

Page 615

446 S.W.2d 615

Myrtle GILPIN, Plaintiff-Appellant, v.GERBES SUPERMARKET, INC., Defendant-Respondent.

No. 53901.

Supreme Court of Missouri, En Banc.

Nov. 10, 1969.

Gullen Coil, jefferson City, for plaintiff-appellant; Carson, Inglish, Monaco & Coil, Jefferson City, of counsel.

Hendren & Andrae, by John E. Burruss, Jr., and Kelly Pool, Jefferson City, for respondent.

HOLMAN, Judge.

Action for damages in which plaintiff sought to recover $50,000 for personal injuries.A trial resulted in a verdict for plaintiff in the sum of $10,000.The trial court sustained defendant's motion to set aside the verdict and for judgment in accordance with its motion for a directed verdict, and entered judgment for defendant.That motion was based primarily upon the contentions that no negligence on defendant's part had been proved and that plaintiff was guilty of contributory negligence as a matter of law.The court also ordered that if the judgment for defendant was reversed on appeal defendant's alternative motion for a new trial was granted on the following grounds: that the verdict was against the weight of the evidence; that plaintiff was guilty of contributory negligence as a matter of law; and that the verdict was excessive.

We have jurisdiction of this appeal because the amount in dispute exceeds $15,000.This for the reason that plaintiff is not seeking a reinstatement of the $10,000 verdict.She concedes that, under the facts of this case, the trial court had the power to grant one new trial on the ground that the verdict is against the weight of the evidence.Therefore, her only contention on this appeal is that the trial court erred in sustaining defendant's motion to set aside plaintiff's verdict and judgment and to enter judgment for defendant.In the situation presented the ultimate relief sought by plaintiff in this court is the opportunity for another trial and hence the amount in dispute is the amount prayed for in plaintiff's petition.

This appeal was originally heard in Division One where an opinion was prepared but not adopted.A dissenting opinion was also written.The case was thereafter transferred to Court en Banc where it was again argued and submitted.Portions of the principal and dissenting opinions prepared in Division are here adopted without the use of quotation marks.

The injuries of which plaintiff complains were received on May 22, 1965, when she fell as she was walking from the Gerbes Store building to her car on the parking lot.The Gerbes Store, a large supermarket in the east part of Jefferson City, had just been open for a day or two at the time of this injury.The building faces north.The center of the building extends farther north than the ends, forming a rectangular extension.Double doors for entrance and exit are on the east and west ends of this rectangular portion.In front of this center portion was a new concrete sidewalk eight feet wide.At its north edge there was a curb of six inches, and north of this curb was another strip of concrete four feet wide of the same appearance, sometimes called a sidewalk and also referred to as a 'gutter.'This latter strip of concrete joined the black asphalt of the parking lot.Approximately ten feet north and a little east of the east exit door a short ramp had been constructed which cut through the curbing.This constituted a slopint surface extending from the upper sidewalk level to the lower level.It was approximately 18 inches long north and south and it curved or 'flared' outward at the bottom.The ramp was about five feet wide at the upper sidewalk level.There was a similar ramp north of the west entrance and exit doors but we are concerned only with the one near the east exit.The sides or edges of the ramp were rounded off or 'tapered,' somewhat like a driveway which passes through a curbline.There were no corners or angles.The ramp was of concrete like the walks above and below, all of a grayish color.The architect stated, however, that the ramp itself had a rough finish, while the sidewalks had a 'broomed' finish which is not as highly polished as a trowel finish.There were no colored stripes or other markings on the ramp or the curb.The purpose of the ramp was primarily o permit grocery carts to be pushed back and forth without bumping over the curb and to permit people to walk without stepping up or down the curb.The architect, Mr. Pallardy, who testified for plaintiff, said that the ramps were provided for in the plans furnished to him.He had received a floor plan of the building, furnished by the Associated Wholesale Grocers, Inc., but had prepared all the details himself including those of the sidewalk and ramps, and had supervised the construction of the whole project.On cross-examination he testified that he considered that these ramps were a safe feature, made no objection, and saw nothing unsafe about them.He further testified that he saw nothing about their design or construction which led him to believe that a person would have any difficulty in 'observing these ramps,' and that he had no difficulty in seeing them; that he did not consider the question of color when the ramps were constructed, but that the roughness of the finish gives them a different appearance.

The plaintiff, married with grown children, went to this store (for the first time) with her husband on the afternoon of May 22, 1965, to get groceries.The day was clear and the sun was shining 'brightly.'The plaintiff was regularly employed at a local church to do cleaning and other similar work.Mr. Gilpin parked the car in the west part of the parking area and they entered at the west door.Plaintiff stated that she did not step up over a curbing, so the must have walked up a ramp like the one described without actually realizing it.They selected their groceries, putting them in a cart, and Mr. Gilpin then went out to his car.Plaintiff checked out the groceries, and a boy employed by defendant then started to push her cart to the car.They left the store by the east exit and walked north, the boy walking ahead with the cart.Plaintiff followed a short distance behind him.At a point near the curbline, and either on or at the bottom of the ramp, the boy stopped (with the cart ahead of him), turned, and asked plaintiff where her car was.She also stopped, perhaps a 'couple of steps' behind the boy and just about at the beginning of the ramp.At one place in the record she testified that the boy was less than a foot from her.She pointed toward the car, the boy started up again, and she, the plaintiff, also started in the direction of the car, to the northwest.She took one or two steps, thus angling to the northwest (her left) and stepped with her right foot on the rounded, sloping west edge or 'lip' of the ramp (or curb).This caused her foot to turn in and she fell forward striking her head against a steel column which was located about 2 1/2 feet west of the west side of the ramp.She sustained substantial injuries but they need not be here described as they are not involved on this appeal.Plaintiff testified that she looked down as she started to walk again, after answering the boy's inquiry; that she looked right at he place where she was going to step, and stepped 'right where I looked,' but that all of the area in front of her looked just like a sidewalk on one level and that it looked as though she could walk right on out to the parking lot; that it was all concrete of the same color; that she saw no drop-off and no ramp.

Two women, customers of the store, testified that they were at the store on the day in question; that they came out of the same exit and turned left on the sidewalk.One testified that the sidewalk and the parking lot appeared to her to be level; the other testified that she saw 'just a white bunch of concrete, just a level, it looked level to me,' and that it appeared to be level from the sidewalk out to the parking lot.

Jack Robinson testified that he was manager of the store on the date plaintiff was injured; that he started 'setting the store up' several weeks before the opening; that Frank Gerbes, president of defendant, was there on opening day and numerous times before; that it was probable that from 1,000 to 1,500 people entered the store each day.

At the close of plaintiff's evidence a motion for judgment in favor of defendantSupermarket Developers, Inc., was sustained.That corporation was stipulated to be the owner of the building, but it was not...