Heidland v. Sears Roebuck & Co.

• Citation: 110 S.W.2d 795,233 Mo.App. 874
• Parties: LILLIAN M. HEIDLAND (PLAINTIFF), RESPONDENT, v. SEARS ROEBUCK & COMPANY, A CORPORATION (DEFENDANT), APPELLANT
• Decision Date: 07 December 1937
• Court: Court of Appeal of Missouri (US)

110 S.W.2d 795

233 Mo.App. 874

LILLIAN M. HEIDLAND (PLAINTIFF), RESPONDENT, v. SEARS ROEBUCK & COMPANY, A CORPORATION (DEFENDANT), APPELLANT

Court of Appeals of Missouri, St. Louis

December 7, 1937

Appeal from Circuit Court of City of St. Louis.--Hon. Eugene J Sartorius, Judge.

REVERSED.

Judgment reversed.

Anderson Gilbert, Wolfort, Allen & Bierman for appellant.

(1) The demurrer to the evidence offered by defendant should have been sustained--(a) There was no causal connection shown between plaintiff slipping and any water on the platform at the time of the fall. (b) Because there is no evidence that the water on the platform or steps made them slippery or dangerous, and no evidence that the steps were not in a reasonably safe condition. There is no duty on the defendant on a rainy day to follow each customer who enters the store with a mop or other device, to keep the floor of its vestibules and platforms dry. (c) Because any water on the platform or steps carried in to the platform or steps by customers on account of the rain was as obvious to plaintiff as it could have been to defendant, and no liability could be predicated on injuries resulting from slipping thereon. Williams v. Kansas City Terminal Company, 231 S.W. 954; Cluett v. Union Electric Light & Power Co., 220 S.W. 865; English v. Sahlender, 47 S.W.2d 150, l. c. 153; Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 985; Main v. Lehman, 294 Mo. 579; Fader v. S. S. Kresge Co., 116 Ohio State 718, 158 N.E. 174; Vogt v. Wurmb, 318 Mo. 471; Cash v. Sonken-Galamba Co., 17 S.W.2d 927.

J. Edward Gragg for respondent.

(1) The trial court did not err in overruling the demurrer to the evidence offered by appellant at the close of plaintiff's evidence, and renewed at the close of all of the evidence. In ruling on demurrers the trial court must accept as true that version of the evidence most favorable to plaintiff, together with all reasonable favorable inferences therefrom. Fadem v. City of St. Louis, 99 S.W.2d 511; Vortriede v. St. Louis Public Service Co., 58 S.W.2d 492; Smith v. Kansas City P. S. Co., 56 S.W.2d 838; State ex rel. v. Haid, 28 S.W.2d 97, 102; Smith v. Sears-Roebuck & Co., 84 S.W.2d 414; English v. Sahlander, 47 S.W.2d 150; Petera v. Railway Exch. Bldg., 42 S.W.2d 947; F. W. Woolworth Co. v. Brown, 258 Ky. 29, 79 S.W.2d 362; Laundrie v. W. T. Grant Co., 241 A.D. 904, 272 N.Y.S. 630; Watson v. Zimmerman, 175 Wash. 410, 27 P.2d 707; Abramson v. W. T. Grant Co., 12 N.J. Misc. 192, 170 A. 815; Lamb v. Purity Store, Inc., 119 Cal.App. 690, 7 P.2d 197; Galarno v. Great Atlantic & Pacific Tea Co., 260 Mich. 113, 244 N.W. 250; Smith v. S. S. Kresge Co., 116 Conn. 706, 164 A. 206; Melber v. Great Atlantic & Pacific Tea Co., 11 N.J. Misc. 635, 167 A. 746; McGee v. Kraft, 110 N.J. L. 532, 166 A. 80; Trottier. v. Neisner Bros., Inc., 284 Mass. 336, 187 N.E. 619; Brown v. Holzwasser, Inc., 108 Cal.App. 483, 291 P. 661; Ralston v. Merritt (Pa.), 178 A. 159; The Fair, Inc. v. Preisach (Tex.), 77 S.W.2d 725; Glenn v. W. T. Grant Co. (Nebr.), 260 N.W. 811; McIntyre v. Holtman (Minn.), 258 N.W. 832; Redon v. Standard Accident Ins. Co. of Detroit, Mich. (La.), 161 So. 762; Newell v. K. & D. Jewelry Co., 119 Conn. 332, 176 A. 405; McDonald v. L. K. Liggett & Co., 241 A.D. 913, 272 N. Y. Supp; Berwald v. Turner (Tex.), 52 S.W.2d 112; Ransom v. Kreeger Store, Inc. (La.), 158 So. 600; Scott v. Kline's Inc., 284 S.W. 831.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

This suit was begun on the 1st day of February, 1935, in the Circuit Court of the City of St. Louis. The substance of the amended petition, on which the case was tried, was to the effect that defendant, on January 26, 1933, negligently permitted the entrance to its store on the east side thereof and its vestibule and hall leading from said entrance into the store and adjacent to the steps leading to the basement of said store, to become covered with water and other slippery foreign substance and did not exercise ordinary care to remove same and prevent injury to customers and patrons; that as a direct result plaintiff slipped and fell on the water and other foreign substance on the floor adjacent to the steps leading to the basement, whereby she sustained injuries; that defendant permitted such water and dangerous substance to remain on the floor at the places mentioned when it knew, or, by the use of ordinary care, could have known, that its customers and patrons were likely to slip and fall on such slippery floor when by the exercise of ordinary care it could have mopped up said floor and dried it or covered it with a mat and made it safe, but carelessly and negligently failed to do so and, by reason of such negligence, plaintiff, who was a customer was caused to slip and fall on said floor at said point where it was covered with water and other dangerous and slippery substance and thereby became injured. She prayed a recovery of judgment for $ 3,000.

The injuries catalogued in her petition as having been sustained by her were as follows: "plaintiff's back and spine, sacroiliac joints, left leg, and knee, and the bones, muscles, tendons, tissues, nerves, ligaments, membranes, cartilages and joints thereof were severely wrenched, twisted, torn, lacerated, infected, inflamed, bruised, contused, separated, fractured, sprained, dislocated, broken and swollen; that she sustained a concussion of the brain and a severe nervous shock; that both of plaintiff's legs and knees were bruised, contused and lacerated; that she now suffers with headaches, sleeplessness and weakness; that her nervous system has been impaired and weakened; that all of the said injuries are serious and permanent, and the function and use of all said parts has been impaired, limited, and rendered painful; that plaintiff has suffered and will suffer pain."

The answer contained a general denial with the further allegation that if plaintiff suffered injuries it was due to her own carelessness and neglect in that she failed to exercise ordinary care to look and observe where she was walking and negligently and carelessly overstepped the tread of the staircase she was attempting to descend.

Upon a trial, which was concluded on October 22, 1935, the jury returned a verdict in favor of plaintiff for $ 250, upon which a judgment was entered and defendant in due course brings the cause to this court by appeal for review.

The only question raised on this appeal is that the trial court erred in not sustaining the instruction offered by defendant in the nature of a demurrer to the evidence at the close of plaintiff's case and also a similar instruction offered at the close of the whole case. This assignment of error will require a review of all the testimony relating to the cause and manner of plaintiff's fall, and of the attendant circumstances and surrounding conditions.

The plaintiff, Lillian M. Heidland, was a woman forty-nine years of age and had been for three years prior to her fall in the store, operating a bake shop in the city of St. Louis, at 6232 Natural Bridge Road. On the day of her injury in question, she came to defendant's store on North Kingshighway at about 7:15 P. M., accompanied by Fred Helmkamp, who drove her to the store in his automobile and parked it on the parking lot at the rear, or east end, of the store, and they gained entrance to the store at what is referred to as the rear, or east entrance.

This entrance had two doors, and, one entering the store by either of these doors, first came to a vestibule or platform just inside the doorways, which is shown by testimony to be about 8 or 10 feet wide from east to west and approximately 16 to 18 feet long from north to south. There was a stairway which led from the south portion of the vestibule or platform up to the first floor. Also a stairway which led from the north portion of the vestibule or platform down to the basement. The stairway to the first floor had approximately five steps, the one leading to the basement had approximately 18 or 20 steps. The steps leading to the first floor and those leading to the basement were divided by a center handrailing.

When plaintiff and her friend Helmkamp first entered the store they ascended the flight of five steps to the first floor and made various purchases on the first and second floors. Then they separated making arrangements to meet in the tire department in the basement.

After plaintiff had finished making the purchases on the upper floors she started toward the basement and her testimony as to what she did just before she fell, and the manner of her fall, is as follows:

"Q. And when you came in the store, did you look at the platform or see anything on the platform? A. I did not.

"Q. Now, when you came a half hour, approximately, later, when you came from the second floor down to the first floor, did you go down the steps there from the second to the first floor? A. Yes, sir.

"Q. Now, I want to ask you this question, please, ma'am: The stairway leading from the first floor to the second floor, and likewise the steps leading from the platform to the basement, are they divided by anything? A. They are, by a center railing.

"Q. Are you right-handed or left-handed? A. I am left-handed.

"Q. Now, when you got down the stairway from the first floor to the platform, what side of the stairway were you on? A. I was on the right-hand side, but at the left-hand rail.

"Q. Were you holding to the rail on your left-hand side? A. Yes, sir.

"Q. Did you notice anything on the platform at that time? A. No, sir; I did not.

"Q. Now, then, when you walked down, if you know, just tell the jury, after you walked down this five or six steps to the first floor, to the platform, tell the jury,...