Hayes v. S. S. Kresge Co.

• Decision Date: 11 January 1937
• Docket Number: No. 18794.,18794.
• Citation: 100 S.W.2d 325
• Parties: HAYES v. S. S. KRESGE CO.
• Court: Missouri Court of Appeals

100 S.W.2d 325

HAYES v. S. S. KRESGE CO.

No. 18794.

Kansas City Court of Appeals. Missouri.

January 11, 1937.

Appeal from Circuit Court, Jackson County; Albert A. Ridge, Judge.

"Not to be published in State Reports."

Action by Elizabeth Hayes against the S. S. Kresge Company. From a judgment for plaintiff, defendant appeals.

Reversed.

H. L. Jost and Roger C. Slaughter, both of Kansas City, for appellant.

John R. Murphy, of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3,000.00. Defendant has appealed.

The facts show that plaintiff, a lady of about 27 years of age, was injured by falling upon a flight of stairs in defendant's retail store in Kansas City. The stairs were situated at the rear or the east end of the first floor of the store. Between that floor and the second floor there was a landing at which the stairway divided, one set of stairs finishing the flight to the second floor was situated to the south and the other to the north of the landing.

Plaintiff had worked as a saleslady in an adjoining store continuously for three years next preceding the date of the accident. During this time it was her habit to patronize the beauty shop in the defendant's store, which was located immediately at the head of the south stairs on the second floor, going there about every two weeks. She always used the same stairs in going to and returning from the beauty shop and had not, at any time, experienced any mishap or fall. She had never paid any attention to the condition of the steps and did not notice their condition the day of her fall.

On December 20, 1933, plaintiff went up the stairs in question to the beauty shop and in returning she started to descend the south flight. The store was crowded and people were all around her. She had hold of the right railing of the stairway, holding on with her right hand and was looking ahead watching the steps. When she reached the third step from the top she stepped off of the same with her right foot, intending to step to the fourth step, but she either slipped or caught her left foot and fell, resulting in her injury. Plaintiff at the time was wearing shoes with french heels, three inches high, "about an inch across the bottom" and "about one-half inch through."

Plaintiff's evidence tends to show that the stairs where she fell were made of Tennessee marble and that they were badly worn by use. The stairs were five feet two inches long; eleven inches wide with risers seven-eighths of an inch thick and five inches high. The tread was one and one-eighth inches thick in its original condition so that the riser and tread combined were about six inches high. The third step, or the one in question, was worn at about the center, north and south, one-eighth to one-fourth inch. However, the stairs had a banister on each side and were there worn deeper where people walked, as did plaintiff, in using the banisters. At this place the step in question was worn away about one-half its thickness or five-eighths of an inch at its deepest point, which was at the outside edge or "nose" of the tread. The worn place was more or less elliptical in shape and was uneven. It was not a perfect square depression but was scooped out more or less rising toward the edges and getting larger toward the center. It was less worn at the rear than at the front where the shoe would strike "the nosing of the tread." This worn place was referred to as a "cupping," the lowest part of the wear being at the riser at the outer edge of the tread. The place was not evenly worn and was slick. "The step tapered from the fore part of the tread, that is—meaning the nosing, that is the extreme edge this way (indicating), flared in each direction. The bottom part of the tread where it had been worn was round. There was no level part at any part of that hole."

One of plaintiff's witnesses, a stone and marble worker, testified that "in all my experience I have never seen tread like that worn down like they are."

There is no claim made by plaintiff that there was any defect in the step except that it was badly worn. She testified that there was ample light present; that the step was clean and there was nothing on it to cause her to fall.

The petition alleges that plaintiff slipped and fell on the stairs. The negligence pleaded was that defendant "caused and permitted the stone steps aforesaid to become rounded and curved at the edges, indented and irregular on the surface, tilted and excessively sleek and slippery and generally unfit for pedestrians to use."

In his opening statement counsel for plaintiff stated that plaintiff's "left foot caught on this tread of the step and she was thrown from there on down the stairs."

Plaintiff was the only witness to her fall. At the trial she testified, on direct examination, that "my foot caught or slipped there on the third step, as I had my other foot out ready to step down, and it throwed me." During the time that plaintiff was on the witness stand the court adjourned for the noon recess and, in the afternoon, she was cross-examined by the defendant and testified as follows:

"Q. Now, then, what was it that you told the jury that happened as you were with your left foot on the third step and as you were putting your right foot on the fourth step? What did you tell the jury this morning happened? A. I told them I turned around and fell.

"Q. Did you tell them you slipped? A. Yes, sir, I did.

"Q. Did you? A. Yes, sir.

"Q. Did you tell them your foot caught? A. No, I said my foot slipped and throwed me forward.

"Q. Didn't you tell the jury this morning that your foot caught or it slipped, one or the other?

"Q. (By Mr. Jost) Did you tell the jury that? A. Not that I can recall I didn't, no.

"Q. What is the fact about it? Did your foot catch or did it slip or did it catch and slip, or what is the fact about it? A. Well, all I know is that my—I was throwed; my foot caught or slipped on something there on that step and throwed me forward, and I tried to grab myself on the railing.

"Q. Now, all you really know is that you fell, isn't it? A. Yes, sir.

"Q. And that is all you know about it? You just fell? A. I know I was hurt, I know that.

"Q. I know; I know, we all—we know that. We know that. A. Well, that is what I mean. I know I was hurt, that is all I know.

"Q. Yes, we know that, but we are trying to get to the very thing now that happened when you fell. We know you fell. A. Yes, sir.

"Q. Now then, you don't know, as a matter of fact, whether your foot slipped or whether it caught, or what. You just know you fell, don't you? A. Oh, my foot slipped.

"Q. It did? A. On the step, yes sir.

"Q. Slipped? A. Yes, sir.

"Q. Didn't get caught? A. Not that I know of. I couldn't—I wouldn't swear to it.

"Q. Let me refresh your recollection about that. In this deposition that you signed just now turn to Page 5 of the deposition. (Witness complies) See there at page 5? A. Yes, sir.

"Q. Now up in there (indicating) let me ask you if, on the occasion when you gave your deposition—whether these questions were not asked you and whether you didn't make this answer—you see this, now? A. Yes, sir.

"Q. `Tell me where you were at the time this happened? Answer: Well, I was on the second floor. Question: Yes. Answer: And I walked down two steps and my heel caught and throwed me down to the landing.' See that? A. Yes, sir.

"Q. You were trying to tell the way it happened, weren't you, then? A. Yes, sir, as near as I could remember.

"Q. Is that true? A. Well, I wouldn't say my heel caught or I wouldn't—I slipped and it might have caught on the step because I didn't—I didn't notice, to be frank with you.

"Q. Well, now don't you know as a matter of fact, that in the whole deposition that you gave on that occasion, you never once said that your foot slipped? Did you know that to be a fact? A. No, because I never had the occasion to do anything like this before. * * *

"Q. Don't you know that you have never before you took the witness stand ever claim that your foot slipped as you went down the steps? A. To who.

"Q. Anybody? A. Why, I never had the occasion to talk to anyone about it.

"Q. Well, I am asking you whether you ever made the statement to anyone before you took the witness stand that your foot slipped as you went down the steps? A. Well, I never—I don't know, I don't exactly know what you mean by that. If you mean talking to relatives, or something of that type—

"Q. No, no. Now, listen to the question. Don't you know that you have never at any time before you took this witness stand today ever told anybody that your foot slipped as you went down the steps? You never did tell anybody that?

"A. Well, I don't remember talking about it, to be frank with you. I don't remember.

"Q. So when your deposition was taken and you were asked the exact question about your falling, you made the statement: `I walked down two steps and my heel caught and throwed me down to the landing,' didn't you? Look at it there. That is what it says, doesn't it? That is what is in the deposition? A. Yes, sir, that is what is there.

"Q. That is true, is it? A. Well, I might have been excited, talking that day, and I may have worded it a little bit different, but it—I wouldn't say whether my heel caught on the step, or how it was, but I know I slipped or my heel caught and it throwed me down to the landing, regardless of how I was—how I caught—I don't —I couldn't recall that, because I didn't know I was going to fall. * * *

"Q. Mr. Slaughter says to you this question, `You don't know of your own knowledge what caused you to slip, do you?' And you answered, `No, I don't.' Is that right? A. Yes, sir.

"Q. And is that true? ...