Glaves v. Old Gem Catering Co.

• Decision Date: 02 July 1929
• Docket Number: No. 20787.,20787.
• Citation: 18 S.W.2d 564
• Parties: GLAVES v. OLD GEM CATERING CO.
• Court: Missouri Court of Appeals

18 S.W.2d 564

GLAVES v. OLD GEM CATERING CO.

No. 20787.

St. Louis Court of Appeals. Missouri.

July 2, 1929.

Rehearing Denied July 9, 1929.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Anna Glaves against the Old Gem Catering Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wayne Ely, of St. Louis, and Roland F. O'Bryen, of Shelbyville, for appellant.

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

BENNICK, C.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff on June 12, 1926, when she was caused to slip upon and fall down a flight of stairs in a restaurant owned and operated by defendant, and in which she was employed as a waitress, at 1727 Market street, in the city of St. Louis. Upon a trial to a jury, a verdict was returned in favor of plaintiff and against defendant, in the sum of $7,500; and, from the judgment rendered in conformity therewith, defendant has duly appealed.

The petition counted upon the negligence of defendant in permitting grease, dirt, and other substances to be and accumulate upon the steps, and in failing to inspect the steps so as to discover such condition, to remove the accumulation in time to have avoided the injury to plaintiff, or to warn plaintiff of the condition of the steps.

The answer filed by defendant was in the terms of a general denial.

The stairway in question was one that led from the kitchen on the first floor to the basement of the restaurant. It consisted of ten or twelve steps, and had a railing along the side for support. There were no windows by the stairway, but such light as there was came from a light which hung from the center of the kitchen ceiling above.

Plaintiff had been employed by defendant for a year prior to the time her injuries were received, and over that period had found it necessary to report the slippery condition of the steps to defendant's manager on several different occasions, after which they would be promptly cleaned or otherwise attended to, sometimes by having a porter stand at the top of the stairs and throw sawdust down upon them. The grease came principally from a waffle iron which was located at the head of the stairs, and they were also rendered slippery by the drain from an ice box in the kitchen, and by the use to which they were put by the cooks and other employés who carried up the supplies from the basement.

Plaintiff had occasion to use the stairs about 3 o'clock in the afternoon as she went to the restroom in the basement, and, in doing so, she slipped upon what she found on closer inspection to be an accumulation of grease, sawdust, strings, and water which had been allowed to collect upon the steps. When she later returned to the first floor, she reported the condition of the steps to defendant's president, who was in charge of the premises, and he told her to go on about her work, and he would see to it that the condition of which she complained was remedied. At 7:30 or 8 o'clock in the evening, she started to go down the stairs again, when she slipped upon the second or third step from the top, and was caused to fall to the bottom of the stairway, and to sustain the injuries for which she has sued.

A point of prime importance is the insistence of counsel for defendant that his requested peremptory instruction in the nature of a demurrer to all the evidence should have been given, upon the theory that plaintiff was shown by her own evidence to have been guilty of contributory negligence as a matter of law. It appears to be his position that, inasmuch as plaintiff had observed the slippery condition of the steps during the afternoon, her testimony that she took hold of the railing and attempted to descend the stairway very carefully in the evening deprived her of the right to have the jury pass upon the issue, since the dictates of ordinary care for her own safety would have required her to look for and see the grease upon the latter occasion.

To our minds this is entirely too harsh a characterization to be ascribed to plaintiff's conduct. In the first place, the light from the kitchen ceiling was too dim to disclose the condition of the stairs unless one looked very closely, and plaintiff did not discover the grease in the afternoon until after she had first slipped upon the steps. Then, too, when plaintiff had reported the condition of the stairs on previous occasions, she always found that the steps were cleaned in response to her request, and the order of her superior on this particular occasion that she continue with her work was an assurance of safety upon which she was entitled to place a large measure of reliance, even though she did deem it the better part of prudence to take hold of the railing and descend the stairway carefully, as counsel for defendant has suggested. If she had seen the grease upon the steps momentarily before she fell, it is doubtful if she could have taken much greater precautions for her safety than she did, and certainly the danger was not so obvious, threatening, and imminent as to have required her to refuse to use the stairway. At any rate, the test of her conduct is a matter about which reasonable minds might well reach different conclusions, and, under all the facts and circumstances of the case, we think it would be highly improper to hold that plaintiff was shown by her own evidence to have been guilty of contributory negligence as a matter of law. Edmondson v. Hotels Statler Co., 306 Mo. 216, 267 S. W. 612; Eaton v. Wallace (Mo. Sup.) 287 S. W. 614, 48 A. L. R. 1291; Strickland v. F. W. Woolworth & Co., 143 Mo. App. 528, 127 S. W. 628; Barnes v. National Biscuit Co. (Mo. App.) 3 S.W.(2d) 254; Hutson v. Missouri Stair Co. (Mo. App.) 296 S. W. 216; Wendt v. Zittlosen Mfg. Co. (Mo. App.) 229 S. W. 1107.

Throughout the trial of the case, the chief controversy between the parties was not whether plaintiff had received the fall in question, but whether the injuries of which she complained were directly attributable thereto. The principal injury of which plaintiff testified was to her right leg, her contention being that a running sore was formed which did not heal for twenty months after the accident, and she stated positively that prior to June 12, 1926, she had never experienced any trouble with the leg. Defendant's testimony, to the contrary, was to the effect that the condition of the leg was due to a frostbite received in the winter of 1921, while plaintiff was doing picket duty during a strike, and that varicose veins were present on both legs, undoubtedly antedating the time of the fall, and contributing to the seriousness of her misfortune.

On the threshold of defendant's case in chief, Dr. Leo A. Will was called as a witness, and he testified on direct examination, not only to the presence of the varicose veins, with pigmentation and scaling on the right leg, but also that the ulcer could have resulted from a blow upon that area. He further testified on redirect examination that the condition which he found would not have resulted from the slight abrasion of a normal leg. Thereupon, on recross-examination, the doctor was asked if the abrasion would have brought about the result shown if it were assumed that plaintiff did receive the fall and that the leg was abnormal at the time. Counsel for defendant objected to the question upon the theory that plaintiff had testified that her leg was normal, and, when the objection was overruled, the doctor answered in the affirmative.

Defendant now argues that plaintiff was bound by her own theory; that, in view of the fact that she had testified that her leg was normal before the accident complained of, she was not entitled to recover upon the theory that the fall aggravated an abnormal condition which she had said did not exist; and that consequently the question asked the witness by counsel was improper.

The suggestions thus made by counsel for defendant are not well taken. He tacitly concedes the fact that plaintiff would be entitled to recover for aggravation to a pre-existing hurt were it not for her own testimony that her leg was normal before the fall. While it is true that she did so testify, the jury were nevertheless entitled, if they saw fit, to believe her statement that she fell and sustained a hurt, but to disbelieve her denial of a previous abnormality, and yet award her compensation for whatever injuries they found she had actually sustained. Gould v Chicago, B. & Q. R. Co., 315 Mo. 713, 290 S. W. 135; Zlotnikoff v. Wells, 220 Mo. App. 869, 295 S. W. 129.

But, aside from this, there is yet an added reason why the question put to the witness may not be made the ground of error, and that is that it called for the giving of no information to the jury other than that which had been voluntarily brought out and invited at the instance of defendant's own counsel in the course of his direct examination. Even if the question had been beside the legitimate issues of the case, which it was not, the jury had already been advised of the doctor's opinion; and to have brought the identical matter once again to their attention could not be said to have injected such prejudice into the case as to call for a reversal of the judgment. Lewis v. St. Louis Independent Packing Co. (Mo. Sup.) 3 S.W.(2d) 244; Huhn v. Ruprecht (Mo. Sup.) 2 S.W.(2d) 760; Lindsay v. Kansas City, 195 Mo. 166, 181, 93 S. W. 273; Bishop v. Musick Plating Works (Mo. App.) 3 S.W.(2d) 256.

The next point assigned is that the court erred in refusing defendant's requested instruction No. 2. This instruction purported to tell the jury that, if they found that plaintiff's right leg was in a diseased or injured condition prior to June 12, 1926, and if they further found that the condition of her right leg was such as to cause her to keep it bandaged prior to...