Hopkins v. Sefton Fibre Can Co.

• Citation: 390 S.W.2d 907
• Decision Date: 18 May 1965
• Docket Number: No. 31960,31960
• Parties: Theresa HOPKINS, Plaintiff-Respondent, v. SEFTON FIBRE CAN COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 907

390 S.W.2d 907

Theresa HOPKINS, Plaintiff-Respondent, v. SEFTON FIBRE CAN COMPANY, Defendant-Appellant.

No. 31960.

St. Louis Court of Appeals, Missouri.

May 18, 1965.

Whalen, O'Connor, Grauel & Sarkisian, Fred B. Whalen, Warren Grauel, St. Louis, for defendant-appellant.

Mogab & Hughes, Richard L. Hughes, Charles A. Mogab, St. Louis, for plaintiff-respondent.

DOERNER, Commissioner.

This is an action for damages for personal injuries claimed to have resulted from a fall. Plaintiff obtained a verdict and judgment below for $6500 and defendant appealed.

Defendant contends that the court erred in refusing to direct a verdict in its favor because plaintiff failed to make a submissible case, in giving Instruction No. 1, in refusing Instruction A, and it also maintains that the judgment is excessive. We shall, therefore, review the evidence from a standpoint favorable to plaintiff and give her the benefit of any part of defendant's evidence favorable to her which is not contradicted by her own testimony and not contrary to her theory of recovery, and we shall also give her the benefit of all favorable inferences arising therefrom. Yarrington v. Lininger, Mo., 327 S.W.2d 104; Ukman v. Hoover Motor Express Co., Mo., 269 S.W.2d 35.

Plaintiff, a lady then 62 years of age, went to work for Food Service Management, Inc., on June 14, 1961. Under an oral arrangement with the defendant, which furnished the space in its plant and the physical equipment, Food Service operated a cafeteria for the convenience of the defendant's employees. Defendant's plant was located on the west side of Big Bend Boulevard in the City of Maplewood, Missouri. The front or east side was back from the street about 12 or 15 feet, and the building extended 541 feet westwardly. On the north side of the building was a parking lot approximately 100 feet in width and in excess of 500 feet in length, for the accommodation of the automobiles of defendant's employees and business visitors. It was also used by the employees of Food Service, with the knowledge and tacit consent of the defendant. Illumination was provided by four one thousand watt floodlights placed at equally spaced intervals on the north wall of the plant, at the roof line. The lights were operated by a single switch. Mr. Rasmussen, defendant's safety director, testified that if a light was not operating the maintenance foreman would direct an electrician to replace the bulb. The two electricians work separate shifts, the first starting at 7:00 A.M. and the second ending at midnight, and they are on call during the remaining seven hours of the day. There were 8 rows of lane dividers or bumpers, each eighty feet in length, which extended from the north side of the lot towards the south, the rows being spaced forty-five feet apart. The lane dividers were timbers 6 feet in length, resembling railroad ties, about 6 inches in height and 8 inches in width, and were anchored to the surface. An interval of a few inches was left between the individual ties to designate a single parking space, and cars were parked against the dividers on an angle, with one row of automobiles on each side facing into the dividers. The ties were creosoted, and dark, and the surface of the lot was paved with asphalt, gray in color.

Plaintiff's hours of employment were from 6:30 P.M. to 9:30 P.M. On the day she began to work for Food Service, June 14, 1961, she walked to defendant's plant from her home, about 4 blocks away. When she arrived at the northeast corner of defendant's property she walked straight west, a distance of over five hundred feet, down a twenty-two foot driveway which was on the north side of the parking area. When she came opposite the employees' entrance to the plant, located on the north side of the building and towards the west end, she walked straight south to the door. On leaving at 9:30 that night she went out by the same door and walked directly east, on a narrow pathway which ran along the south side of the parking area, between the south ends of the rows of ties and a cyclone wire fence, until she reached Big Bend Boulevard.

Upon entering the plant the second day plaintiff traversed the same route on her way in to the building that she had followed the previous night. When she and her fellow-worker, Mrs. Martha Harris, prepared to leave around 9:30 P.M. it was raining, and Mrs. Harris offered to drive plaintiff home. They left the building by the employees' entrance, and, according to plaintiff, walked an unspecified distance eastwardly on the pathway, Mrs. Harris leading and plaintiff following. At that point Mrs. Harris, who had no umbrella as did plaintiff, remarked that she would go ahead and open the door to her car. Mrs. Harris then left the pathway and walked on an angle, in a northeastwardly direction, to where her car was parked near the center of the parking area. It is not clear from plaintiff's testimony whether she continued to walk eastwardly along the pathway, or if so, how far. She did testify that after Mrs. Harris left it thundered and lightning flashed, and that she stopped to get her footing. She then called out and Mrs. Harris answered, '* * * 'I'm over here,' * * *.' Plaintiff thereupon started to walk on an angle, northeastwardly across the parking area, and tripped and fell forward when she came to the first row of ties, injuring herself. Mrs. Harris helped plaintiff to arise, retrieved her umbrella, and assisted her to the car. Plaintiff testified that she did not know that there were ties stretching in rows across the parking area and that, although it was daylight when she entered the plant on the 14th and 15th, she had not observed the ties because they were covered by the overhang of the cars parked on the lot. Plaintiff also stated that she did not see the ties before she fell because it was too dark, and that the middle two of the four floodlights were out. Because of the conclusion we have reached regarding the issue of submissibility it is unnecessary to state the nature and extent of plaintiff's injuries.

The merits of defendant's appeal appear to center primarily on Instruction No. 1, plaintiff's only verdict directing instruction. In their respective briefs both parties agree that the plaintiff thereby submitted her case in the conjunctive, upon two predicates of negligence: (1) insufficient illumination by reason of two of the floodlights being out at the time plaintiff fell; and (2), the placing of the dividers or ties by the defendant on and about its parking lot. Loath as we are to differ with learned counsel, we cannot bring ourselves to share their view. The instruction is long and involved, and in the interest of brevity we shall not quote it. But as we read the instruction, and as we think normally intelligent laymen serving as jurors would undoubtedly understand it, we believe that the jury was in effect instructed that the parking lot with the dividers on it created a hazardous condition to one walking on it at night, not independently of the illumination, but only because of the inadequate lighting due to the nonfunctioning of two of the floodlights. Be that as it may, we shall treat the points raised by defendant as the parties have done in their briefs.

As to the lack of illumination, defendant asserts that plaintiff failed to make a case on that issue because there was no evidence adduced that the defendant had actual or constructive notice that the lights were out. Plaintiff does not dispute the legal principles regarding notice upon which defendant's argument is based, Gruetzemacher v. Billings, Mo., 348 S.W.2d 952; Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55; Brophy v. Clisaris, Mo.App., 368 S.W.2d 553; nor does plaintiff contend that she produced evidence of actual knowledge on the part of defendant. Her sole contention in that regard is that; 'There was ample evidence that poor lighting conditions had existed for some time * * *,' so that defendant should be charged with constructive notice. In support of that assertion plaintiff attempts to piece together two independent bits of evidence; the first, plaintiff's testimony that at the time she fell two of the four floodlights were out; and the second, that part of the testimony of defendant's witness, Mrs. Harris, in which she was asked:

'Q. Were there any differences in the lighting that was there that night and that was there any other night that you went there?

'A. No, I don't think so.'

From this tenuous premise plaintiff argues that such evidence was '* * * sufficient to allow the jury to conclude that the condition had existed for a matter of days. * * *'

With that conclusion we cannot agree. In the first place, the foregoing part of Mrs. Harris' testimony is lifted out of context. The question and answer which immediately preceded it, for example, were:

'Q. Were there any of those lights out on this particular night?

'A. Not that I know of.'

Furthermore, the substance of Mrs. Harris' testimony was that the lot was 'well lighted' at the time plaintiff fell, and that the witness had no difficulty in seeing the ties as she walked to her car. Of even greater importance, however, is the fact that plaintiff's own testimony conclusively rebuts any supposed inference that the lights had been out for days. On direct examination by her own counsel plaintiff stated:

'Q. The first night that you had left, not the night you had fallen, had you noticed whether or not any parking light was lit?

'A. Yes, it was.

'Q. Now, on the night that you fell did you notice anything different about the lighting conditions?

'A. Yes, there were two lights out.'

And to the same effect:

'Q. These lights that you spoke about in the parking lot, the night before, when you left the building and walked up this walkway, did not notice whether the lights were on or not at that time?

'A. Yes, they were on that night.'

In a material matter of this kind, a plaintiff is...