Hart v. Emery, Bird, Thayer Dry Goods Co.

• Decision Date: 23 May 1938
• Citation: 118 S.W.2d 509,233 Mo.App. 312
• Parties: CATHERINE HART, RESPONDENT, v. EMERY-BIRD-THAYER DRY GOODS CO., APPELLANT
• Court: Kansas Court of Appeals

118 S.W.2d 509

233 Mo.App. 312

CATHERINE HART, RESPONDENT, v. EMERY-BIRD-THAYER DRY GOODS CO., APPELLANT

Court of Appeals of Missouri, Kansas City

May 23, 1938

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

Judgment reversed and cause remanded.

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

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

OPINION

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 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, 189 S.W. 805.]

"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, 46 S.W.2d 557.]

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. P. Ref. & Roofing Co. (Calif.), 148 P. 95.] "The basis of this presumption is the doctrine of probabilities." (Italics ours.) [Byers v. Essex Inv. Co., 281 Mo. 375, 382, 219 S.W. 570.] In McGrath v. St. Louis Transit Co., 197 Mo. 97, 104, 94 S.W. 872, the court said: "Where an inference could be as reasonably drawn that the accident was due to a cause or causes other than the negligent act of the defendant, then the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances of the accident." It is not the injury standing alone but the manner and attending circumstances of the accident which justify the application of the doctrine. [45 C. J., p. 1200.] The theory of the doctrine is based, in part, upon the consideration that, as the management and the control of the agency producing the injury is exclusively vested in the defendant, plaintiff is not in a position to show the circumstances causing the agency producing the injury to operate, defendant possessing a superior knowledge of the facts. [45 C. J., p. 1205.] The presumption originates and depends upon the nature of the act and the circumstances and character of the occurrence and not on the nature of the relations between the parties, except indirectly in so far as that relation defines the measure of duty imposed on defendant. [45 C. J., pp. 1208, 1209.] "The doctrine is applicable only where the physical cause of the injury and the attendant circumstances indicate such an unusual occurrence that in their very nature they carry a strong inherent probability of negligence and in the light of ordinary experience would presumably not have happened if those who had the management or control exercised proper care. Accordingly the mere occurrence of an unusual or unexplained accident or injury, if not such as necessarily to involve negligence, does not warrant the application of the doctrine, and it has been held that the doctrine does not apply where the act which caused the injury was beyond doubt the voluntary and intentional act of some person. Furthermore, the rule cannot be invoked where the existence of negligence is wholly a matter of conjecture, and the circumstances are not proved, but must themselves be presumed." [45 C. J., p. 1211.]

"Where there are two or more persons or causes which might have produced the injury, some, but not all, of which were under the control of defendant or for which he was legally responsible, plaintiff, in order to invoke the doctrine, must exclude the operation of those causes for which defendant is under no legal obligation. It has been held that the doctrine is to be applied only when the nature of the accident itself not only supports the inference of defendant's negligence, but excludes the idea that the accident was due to a cause with which defendant was unconnected. However, it is not requisite, in order to invoke the doctrine, that plaintiff's case be such as to exclude every hypothesis but that of defendant's negligence, for the rule is one which relates merely to negligence prima facie and is available, without excluding all possible circumstances which would excuse defendant, if the circumstances surrounding the accident render it more probable that the injury was due to the negligence of the defendant than otherwise. Accordingly, although the responsibility of defendant is ordinarily inferred, in conformity with the statements of the rule, from his management or control of the injuring agency, where all the facts connected with the occurrence fail to point to the negligence of defendant as the proximate cause of the injury, but show a state of affairs where it could with equal reasonableness and consistency be inferred that the accident was due to a cause or causes other than the negligent act of defendant, as where there...