Hogan v. S. S. Kresge Co.

• Decision Date: 07 April 1936
• Docket Number: No. 23571.,23571.
• Citation: 93 S.W.2d 118
• Parties: HOGAN v. S. S. KRESGE CO.
• Court: Missouri Court of Appeals

93 S.W.2d 118

HOGAN v. S. S. KRESGE CO.

No. 23571.

St. Louis Court of Appeals. Missouri.

April 7, 1936.

Rehearing Denied April 28, 1936.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be published in State Reports."

Action by Lilear Hogan against the S. S. Kresge Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wayne Ely and Tom Ely, Jr., both of St. Louis, for appellant.

Arthur F. C. Blase and Durward S. Brown, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff in falling on the floor of defendant's retail merchandising store, located at the southeast corner of Sixth street and Washington avenue, in the city of St. Louis.

Plaintiff in her petition alleges that on August 16, 1932, she was in said store as a patron thereof, and, while walking upon and along one of the aisles of the store, she was by reason of the negligence of defendant caused to slip and fall on the floor of said aisle, and thereby sustained permanent and painful injuries; that her injuries were directly and proximately caused by the negligence of defendant, in that defendant negligently suffered and permitted ice cream, milk, and other liquids to be and remain upon the floor of said aisle, causing the floor to become slick and slippery.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $2,000, and defendant appeals.

Defendant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence requested at the close of the whole case. In support of this assignment, defendant insists that the evidence wholly fails to show that the defendant knew, or by the exercise of ordinary care would have known, of the presence of the ice cream on the floor prior to the accident.

It thus becomes necessary to set out the testimony somewhat in detail.

Plaintiff testified that at the time she fell she was in the second aisle of the store from the west near the north end of the aisle; that she stepped on some slippery substance, and her feet slipped out from under her and she fell back on the floor on her right side; that some people helped her up; that after she fell she saw something on her shoe heel that looked like ice cream; that she saw something on the floor that looked like she had stepped in and quite a little fresh wet-looking spot; that it looked like it could have been ice cream melted down; that it looked like it was ice cream, and that is what she slipped in; that she stepped in it and slipped off of it; that she noticed it being wet and the center looked like her shoe had mashed into something; that the wet spot was some four inches in diameter; that she did not see that on the floor before she fell; that it was 2 or 2:30 o'clock when she slipped on the floor and fell, 2 or 2:30 o'clock, as near as she could guess at it; that the store was very crowded; that the ice cream counter was in the north end of the store with just a little aisle between the aisle she was in and the ice cream counter; that as near as she could estimate it the place where she fell was four or five feet from the ice cream counter; that the width of the spot made on the floor by the ice cream was something like the palm of her hand, something just about that size, not the middle round top part that she stepped in, but the part that melted out over the floor; that the spot was not exactly round, but it was about four inches across; that a part of the ice cream was melted, but not all of it; that her shoe mashed into the part that was not melted; that she did not know whether or not it was a hot or cool day, but that it was cool in the store; that whatever she stepped in looked like ice cream.

Learnia Robinson testified, for plaintiff, that she arrived at the Kresge store, at Sixth and Washington, after 1 o'clock; that she went down the first aisle, and was standing around there looking, and came back up the second aisle; that she saw ice cream on the floor at the north end of the aisle, or something that looked like ice cream; that she reckoned the ice cream was just about eight feet from the ice cream counter; that she did not know exactly how many feet it was; that she saw the ice cream and stepped around it; that after she saw the ice cream she went down in the basement, and stayed down there about fifteen minutes; that she bought some paper in the basement to make some flowers; that after she got through in the basement she went up the steps; that when she got up the steps they were picking the lady up; that the lady was in the second aisle from the west; that she arrived at the store that day at about 1 o'clock; that it was not very long after she got in the store when she noticed the ice cream on the floor; that she went down the first aisle and came back up the second aisle, just looking around; that she did not know how many minutes it took standing there looking around, and that when she came back up the second aisle she saw this place on the floor; that she guessed she consumed about ten minutes, not over twenty minutes, looking around, before she saw the ice cream on the floor; that the ice cream she saw on the floor was just near about all melted; that it was a sort of white liquid; that it made a spot on the floor about as big as the palm of her hand, something like that; that she noticed it because she liked to stepped in it; that she guessed that the ice cream she saw on the floor was about eight feet, or four feet, from the ice cream counter; that she did not know the exact distance; that the ice cream she saw was close to the counter on the west side of the aisle; that, when she came up the steps from the basement and saw them picking the lady up, it was around 2 o'clock or something like that; that she did not know exactly what time it was; that the lady was lying in the second aisle from the west when she saw them picking her up; that she noticed the floor at the time she saw her being lifted up, and she saw the ice cream all smeared over the floor where she had fallen.

Mrs. Estelle Liebenguth testified, for defendant, as follows: "I was working in the store at counter No. 3. I sold toilet articles. There were quite a few customers around the counter, and I was waiting on them, and was waiting on Lilear Hogan at the time she fell. There was an ice cream counter near the counter where I was working. There was a porter employed there at the time. The porter had a dust pan and a broom. He was continuously working on the floor, going around the whole floor. He passed my counter quite often, because the ice cream sandwich counter was right there in front, and there were a lot of people that would let ice cream drop on the floor, and he had to keep that clean. After Lilear Hogan fell I didn't go out immediately to look at the floor. I had a few customers to wait on. I went out in the next few minutes to see what she had fallen on. I went out and looked at the floor. There wasn't any ice cream on the floor. It wasn't wet at all. We had porters there to pick things up off the floor. The porter made frequent trips over there around where my counter was, and that was for the purpose of picking up any ice cream that people dropped in that vicinity. He came around there quite often, and when he passed he paid particular attention to that particular part of the floor on account of the ice cream which was dropped there. This accident happened in the afternoon about two-thirty, or something like that."

Charles Kreager testified, for defendant, as follows: "I am employed by the Kresge Company. I am a porter. I sweep the floor, go around with a pan and a broom all day long. I know where counter No. 3 is. On the day of the accident I made my round every fifteen minutes on both floors, the basement floor and the main floor. I carried a dust pan and a broom. I had been by this counter and through this aisle where the lady fell within fifteen minutes before she fell. Every fifteen minutes I went through the whole thing. They told me somebody slipped and fell, and I went back to the same spot where she slipped, and I didn't find any ice cream, or any milk, or anything of that sort, in the aisle there. On my round before that I had not found anything there. I found ice cream on the floor around there once in a while. I have seen lots of ice cream on the floor there. I covered the entire floor every fifteen minutes."

Earl R. Priess testified, for defendant, that he was employed by the Kresge Company as assistant manager at Sixth street and Washington avenue; that he was merchandise manager and floor manager on the main floor; that as floor manager it was his duty to maintain the floor according to Kresge's standards; that it was his duty, among others, to see that the floor was covered by the porter; that he judged that the porter covered all the aisles on the main floor every fifteen minutes; that he saw Lilear Hogan in the store that day; that, when he first saw her, she was on the floor where she had fallen down; that he helped pick her up, and examined the floor as soon as he helped pick her up, and there was no foreign...