Hart v. Emery-Bird-Thayer Dry Goods Co., No. 19164.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBland
Citation118 S.W.2d 509
Decision Date23 May 1938
Docket NumberNo. 19164.
PartiesCATHERINE HART, RESPONDENT, v. EMERY-BIRD-THAYER DRY GOODS Co., APPELLANT.
118 S.W.2d 509
CATHERINE HART, RESPONDENT,
v.
EMERY-BIRD-THAYER DRY GOODS Co., APPELLANT.
No. 19164.
Kansas City Court of Appeals. Missouri.
May 23, 1938.

[118 S.W.2d 510]

Appeal from Jackson Circuit Court. — Hon. Thos. J. Seehorn, Judge.

REVERSED AND REMANDED.

L.E. Durham, Hale Houts, Wright Conrad and Wm. E. Durham for appellant.

Francis L. Roach and Marcy K. Brown, Jr., for respondent.

BLAND, J.


This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1200. Defendant has appealed.

The facts show that defendant is the operator of a large department store in Kansas City, with what is known as a "bargain" basement. The basement was a large room with a great many tables, separated by aisles, upon which merchandise of various kinds was displayed.

Plaintiff testified that on May 1, 1936, she went to this basement for the purpose of purchasing some curtains and materials to cover a glider; that she saw a table, which she took to contain yard goods that might be suitable for a glider cover; that she approached the table and, instead of the the table containing such material, it had upon it a pile of awnings. Each of these awnings was attached to and rolled upon a metal frame. These awnings were about thirty-six inches in width, about the same width as the table, and were laying across the table in layers. The top of the table was level and the awnings were not hanging over the sides. At one place in her testimony she stated: "It wasn't just exactly two layers of them (awnings), two or three piled on top of two or three and then maybe a little space;" that there was an aisle clear around the table; that when plaintiff approached near it she stopped and did not take hold of the table or the awnings, but two of them rolled off of the end of the table and struck her on the ankle, resulting in the injuries for which this suit is brought.

Plaintiff testified that there were a number of people in the basement at the time in question and that there were sales persons at various places but no one was near the table of awnings at which plaintiff was hurt. She testified that when she arrived at the table of awnings she did not "think about them (the awnings) falling." but she noticed that they were arranged "disorderly on the table;" that they "were not very high;" that she would say that she did not discover that the awnings were not the material she was looking for until after they fell.

Plaintiff further testified that it was the practice and custom of customers in the store to examine merchandise if they desired and if they did not like it to "put it back on the table;" that after she was injured she went over to the curtain counter and there looked at some curtains and "put them back." As to the merchandise on the table containing the awnings she testified: "Q. Were you not at the time reaching to pick up some of this merchandise, these awnings? A. I didn't pick it up. Q. I mean weren't you intending to look at it, examine it? A. Yes, I was intending to look at it. Q. Just like people do? A. I might have if I had a chance, but I never had a chance to... . Q. Are you sure that you didn't touch them? A. Yes... . Q. Anyway there was nothing to prohibit you from touching them if you wanted to? A. No. Q. That is the customary thing? A. Yes. Q. All the customers in there are privileged to look at the merchandise and examine it? A. Yes. Q. Had you seen anyone at the table just before you? A. No, I hadn't noticed." She further testified that it was a busy day in the basement of the store and, as before stated, there were a number of customers in the basement at the time. The store was usually busy in the basement.

Defendant introduced no testimony.

Defendant insists that its instruction in the nature of a demurrer to the evidence should have been given. The case was tried and submitted to the jury on the res ipsa loquitur doctrine, and defendant claims that this is not a case for the application of such a doctrine.

"More precisely the doctrine res ipsa loquitur asserts that whenever a thing which produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the

118 S.W.2d 511

fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care." [20 R.C.L., p. 187; See, also 45 C.J., p. 1193; Pointer v. Mountain Ry. Constr. Co., 269 Mo. 104, 121, 122.]

"In general and on principle the doctrine res ipsa loquitur does not apply except when: (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care: (b) the instrumentalities involved were under the management and control of the defendant: (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. [McCloskey v. Koplar, 329 Mo. 527, 533.]

The requirement that the instrumentality be under the management and control of the defendant does not mean, or is not limited to, actual physical control, but refers rather to the right of control at the time the negligence was committed." [McCloskey v. Koplar, supra l.c. 535.] Consequently, the mere possibility that some third person might have been responsible for the negligent condition of the instrumentality causing the injury does not prevent the rule from applying. [Van Horn v. Pac. Ref. & Roofing Co. (Calif.), 148 Pac. 95.] "The basis of this presumption is the doctrine of probabilities." (Italics ours.) [Byers v. Essex Inv. C...

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33 practice notes
  • Copher v. Barbee, Nos. 8104
    • United States
    • Court of Appeal of Missouri (US)
    • October 1, 1962
    ...picking up, handling, examining and relocating items displayed for sale [Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 317, 118 S.W.2d 509, 512; Cohen v. Penn Fruit Co., 192 Pa.Super. 244, 159 A.2d 558, 560(4)]; and Safeway's customers in the Webb City store indulged the same ......
  • Bone v. General Motors Corp., No. 46793
    • United States
    • United States State Supreme Court of Missouri
    • April 13, 1959
    ...more than a case of equal probabilities--one with liability and one without. Hart v. Emery-Bird-Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509; Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95. "The attendant facts must raise a reasonable inference of defendant's negligence * * *......
  • Frazier v. Ford Motor Co., No. 43538
    • United States
    • United States State Supreme Court of Missouri
    • February 14, 1955
    ...Co., Mo.App., 215 S.W.2d 78, 81; Estes v. Estes, Mo.App., 127 S.W.2d 78, 80; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 512; Marceau v. Rutland R. Co., 211 N.Y. 203, 105 N.E. 206, 51 L.R.A.,N.S., 1221, 1224, Ann.Cas.1915C, 511; Prest-O-Lite Co. v. Skeel, 182......
  • Pilie v. National Food Stores of La., Inc., No. 46586
    • United States
    • Supreme Court of Louisiana
    • November 12, 1963
    ...(1960); Murphy v. J. L. Saunders, Inc., 202 Va. 913, 121 S.E.2d 375 (1961). 4 Hart v. Emery, Bird Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509 (1938); Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 364 P.2d 352 (1961); Marnsigli v. C. W. Averill Co., 123 Vt. 234, 185 A.2d 732 (1962)......
  • Request a trial to view additional results
33 cases
  • Copher v. Barbee, Nos. 8104
    • United States
    • Court of Appeal of Missouri (US)
    • October 1, 1962
    ...picking up, handling, examining and relocating items displayed for sale [Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 317, 118 S.W.2d 509, 512; Cohen v. Penn Fruit Co., 192 Pa.Super. 244, 159 A.2d 558, 560(4)]; and Safeway's customers in the Webb City store indulged the same ......
  • Bone v. General Motors Corp., No. 46793
    • United States
    • United States State Supreme Court of Missouri
    • April 13, 1959
    ...more than a case of equal probabilities--one with liability and one without. Hart v. Emery-Bird-Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509; Frazier v. Ford Motor Co., 365 Mo. 62, 276 S.W.2d 95. "The attendant facts must raise a reasonable inference of defendant's negligence * * *......
  • Frazier v. Ford Motor Co., No. 43538
    • United States
    • United States State Supreme Court of Missouri
    • February 14, 1955
    ...Co., Mo.App., 215 S.W.2d 78, 81; Estes v. Estes, Mo.App., 127 S.W.2d 78, 80; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 512; Marceau v. Rutland R. Co., 211 N.Y. 203, 105 N.E. 206, 51 L.R.A.,N.S., 1221, 1224, Ann.Cas.1915C, 511; Prest-O-Lite Co. v. Skeel, 182......
  • Pilie v. National Food Stores of La., Inc., No. 46586
    • United States
    • Supreme Court of Louisiana
    • November 12, 1963
    ...(1960); Murphy v. J. L. Saunders, Inc., 202 Va. 913, 121 S.E.2d 375 (1961). 4 Hart v. Emery, Bird Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509 (1938); Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 364 P.2d 352 (1961); Marnsigli v. C. W. Averill Co., 123 Vt. 234, 185 A.2d 732 (1962)......
  • Request a trial to view additional results

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