Haverkost v. Sears, Roebuck & Co.

• Decision Date: 19 March 1946
• Docket Number: No. 26898.,26898.
• Court: Missouri Court of Appeals
• Parties: HAVERKOST v. SEARS, ROEBUCK & CO.

193 S.W.2d 357

HAVERKOST v. SEARS, ROEBUCK & CO.

No. 26898.

St. Louis Court of Appeals. Missouri.

March 19, 1946.

Rehearing Denied April 16, 1946.

Appeal from St. Louis Circuit Court; Harry F. Russell, Judge.

"Not to be reported in State Reports."

Action by William H. Haverkost against Sears, Roebuck & Co., to recover for damage resulting to plaintiff as the consequence of personal injuries sustained by his wife who fell upon a stairway maintained by defendant. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Anderson, Gilbert, Wolfort, Allen & Bierman and Roscoe Anderson, all of St. Louis, for appellant.

Louis E. Miller, Miller & Landau, and B. Sherman Landau, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, the husband, to recover for the damage resulting to him as the consequence of personal injuries sustained by his wife, Loraine Haverkost, when she was caused to fall upon a stairway maintained by defendant, Sears, Roebuck & Company, in its store at 3708 South Grand Boulevard, in the City of St. Louis.

A verdict of nine jurors was returned in favor of plaintiff, and against defendant, in the sum of $1,000. Within due time defendant filed its motion for a new trial joined with a motion to have the verdict and the judgment entered thereon set aside and judgment entered in accordance with its motion for a directed verdict. The motions were subsequently overruled, whereupon defendant gave timely notice of appeal from the final judgment, and has brought the case to this court in the proper course.

The stairway in question connects the first and second floors at the north end of defendant's store. It is from 8 to 12 feet in total width, with a railing on either side, and in addition has a double railing built along the middle of the stairway which divides the same into two portions, one to be used by persons ascending the stairway, and the other to be used by persons descending it. A flight of some ten steps leads down from the second floor to a landing midway between the floors, where the stairway turns in the opposite direction and continues on to the lower floor.

At the head of the stairway on the second floor defendant had caused a chromiumplated metal device to be attached to the edge or nosing of the portion of the floor which opened out upon the stairway and comprised the top or upper step. The purpose of the device was to afford something substantial along the edge or nosing of the second floor level against which the covering of the floor would rest. The front of the device was so constructed as to curve downward around the edge or nosing from a flat plate a little more than an inch in width, which extended back at a right angle, and was laid upon and attached to the wooden floor with screws. The upper edge of the curved surface was made to project slightly above the floor plate so as to serve as a support against which the covering of the floor would rest. Such covering, which was put down in January, 1941, consisted of rubber tile laid upon and cemented to felt, which was in turn cemented to the hardwood floor; and both the felt and the rubber tile were laid upon the flat plate flush against the projection, the height of which was so designed that at the time of installation, and before there was any wear at that particular point, the combined thicknesses of the felt and rubber tile would raise the level of the floor covering absolutely even with the top of the projection, and thus leave nothing extending above the surface of the floor against which a person's foot might catch in attempting to descend the stairway.

The evidence disclosed that the store has an average of around 500,000 customers a month, and that the stairway in question, along with a corresponding stairway at the south end of the store, is regularly used by those of the store's customers and employees who have occasion to pass between the first and the second floors. The single elevator in the store is a freight elevator, and customers and employees going from one floor to another are relegated entirely to the use of the two stairways.

The injury to plaintiff's wife occurred on May 22, 1942, after the floor covering at the head of the stairway had been in use for sixteen months without change, alteration, or repair.

Mrs. Haverkost had entered the store as a customer, and in the course of her shopping had made her way to the second floor by walking up the stairway at the south end of the building. Among the items on her shopping list was children's dress material; and upon inquiry on the second floor, she was told by one of defendant's saleswomen that the department was located near the foot of the north stairway on the lower floor.

According to Mrs. Haverkost's own version of what occurred, she started down the stairway with her right hand on the railing; stepped down with her right foot to the step immediately below the second floor level; and then as she started to step down with her left foot, the rubber heel pad on her shoe caught under the projecting metal device at the edge or nosing of the step, tearing the heel pad loose from the shoe, and causing her to fall and roll down the stairway to within two or three steps of the middle landing. There is no issue made on this appeal regarding the nature and extent of the injuries she sustained.

She was assisted to her feet by one of defendant's employees and taken back to the head of the stairway, where she sat down on a davenport while arrangements were being made for procuring medical attention. As she walked back up the stairway, she called the employee's attention to the projection which appeared to her to stand "about a quarter of an inch above the floor level"; and during the period of fifteen minutes that she was seated on the davenport about three feet from the head of the stairway, she glanced towards the step on three or four occasions, and "knew positive that is what caught my heel".

About three weeks later she returned to the store in company with her husband for the purpose of showing him where she had fallen, and observed that the condition had not been remedied, but that the metal device was "still projecting up a quarter of an inch". Later she qualified this statement (as she had apparently done in a deposition) by saying that the projection was "from an eighth to a quarter; I didn't measure it".

Plaintiff himself testified that on the day following that on which his wife had been hurt, he went to defendant's store to make an examination of the stairway, and observed that the metal strip on the second floor level "projected approximately from an eighth to a quarter of an inch". The height of the projection varied with the wear upon the stairs, the greater wear being "in the center of the steps" where "the metal strip projected a quarter of an inch above the surface of the floor", while "close toward the wall on the sides" the projection was only an eighth of an inch. He also testified to the visit three weeks later with his wife, when they found that the "same condition" still existed.

Defendant's evidence was to the effect that there was no such projection of the metal strip as testified to by plaintiff and his wife, and that the latter had made no claim at the time of the occurrence that her injury had been caused in any such way. On the contrary, one Grove, a department manager, testified that he had been near the foot of the stairway when the accident occurred, and that upon subsequent inquiry of Mrs. Haverkost as to "what had happened", she had told him that "going downstairs, she had slipped on the second step, and in falling grabbed the rail and then slipped on down three or four more steps". A similar account was given by Kenneth Cates, the porter who had assisted her to her feet, who stated that he "asked the lady if she was hurt", and that "she didn't answer clearly but mumbled something about slipping on the stairs".

Plaintiff's theory of the case, as pleaded and submitted, was that the metal strip in question projected from an eighth to a quarter of an inch above the level of the second floor, and by reason thereof created a dangerous and unsafe condition; that such condition had existed for a sufficient length of time before the injury to plaintiff's wife for defendant, in the exercise of ordinary care, to have known of it and have remedied the same; that defendant had failed to remedy the condition; that such failure constituted negligence; and that on the day in question, while plaintiff's wife was present in the store as a customer and was attempting to descend the stairway from the second to the first floor, her heel caught against the projection of the metal strip, causing her to fall down the stairway and sustain the injuries which have given rise to this proceeding.

The chief point in dispute on this appeal is whether the court was correct in denying defendant's motion for a directed verdict.

Defendant argues that its motion should have been sustained upon the theory that the projection shown by plaintiff's evidence was so slight that its existence could not have constituted actionable negligence; that there was no evidence that defendant had actual or constructive knowledge of the alleged condition; that the condition, if it existed, was as obvious and observable to plaintiff's wife as it was to defendant, and consequently could have afforded no ground of liability; and that the...