Howard v. Johnoff Restaurant Co.
| Decision Date | 14 April 1958 |
| Docket Number | No. 46131,No. 1,46131,1 |
| Citation | 312 S.W.2d 55 |
| Parties | Henrietta HOWARD, Appellant (Plaintiff), v. JOHNOFF RESTAURANT COMPANY, Incorporated, a Corporation, Respondent (Defendant) |
| Court | Missouri Supreme Court |
Glennon T. Moran, Moran & Mason, St. Louis, Robert E. Morley, St. Louis, of counsel, for appellant.
Schwartz & James, Harry M. James, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for respondent.
VAN OSDOL, Commissioner.
Plaintiff sought recovery of $45,000 damages for personal injuries sustained when she fell on the dance-floor area of the artificially lighted main dining room of defendant's restaurant situate on Kingshighway in St. Louis. Plaintiff had alleged that the dining room was dimly lighted, and that the floor thereof was highly waxed and polished, unusually slippery, and not reasonably safe. Plaintiff's case was submitted to the jury on defendant's negligence in failing to warn plaintiff of the alleged unsafe condition. The jury returned a verdict for defendant. Plaintiff has appealed from the ensuing judgment.
Herein upon appeal, plaintiff-appellant contends the trial court erred in instructing the jury and in excluding evidence proffered by plaintiff. Defendant-respondent contends there was no error in instructing the jury, and no error in ruling on the admissibility of evidence. But defendant-respondent also raises the initial basic issue that the trial court erred in overruling defendant's motion for a directed verdict--it is said plaintiff failed to make out a submissible case. If no case was made for a jury, the errors complained of relating to instructions and to the admissibility of evidence (which evidence has no bearing upon the question of submissibility in this case) were immaterial. O'Dell v. Dean, 356 Mo. 861, 204 S.W.2d 248.
Plaintiff and three other elderly ladies were patrons of defendant's restaurant. Monthly, for several years, they had been going to the main dining room of the restaurant for lunch; and, having had lunch, these ladies were accustomed to remaining, with defendant's consent, at the luncheon table where they played bridge during the early afternoon.
On the day plaintiff was injured, dining tables were located in rows along the north, east and south sides of the main dining room; and on the west side there was a raised platform for musicians who played on Saturday evenings for the entertainment of defendant's patrons, especially for the entertainment of those patrons who wished to dance in the open area provided for dancing, which area was more centrally located in the room between the musicians' platform and the patrons seated at the dining tables. On other days of the week, patrons occasionally danced in the area provided for dancing, the music being supplied by a juke box. A ladies' toilet was located just beyond a small alcove off the southwest corner of the dining room.
On a Wednesday, the day plaintiff was injured, plaintiff and her three friends were seated at a table in the first or second row from the south wall, perhaps at the third table back from the dance floor. They had lunch and played bridge, and, when they were about to depart from the restaurant, plaintiff had occasion to go to the ladies' room. She moved somewhat to the northward and walked over the area set apart for dancing. She testified that it was not possible to go to the ladies' room without walking across the dance floor. She also testified that it was never 'too light in there, you know, it's just like all club rooms, I guess a little dim * * *.'
Plaintiff further testified, 'Well, I started up to the ladies' room and I didn't notice the floor was too slippery or too slick when I went over there. I didn't notice it too much, but when I came back, why I fell, and then I knew it was slippery, just shining like glass, and I could see the skid marks where I fell. * * * streaks' were where her foot slipped on the floor--'where my feet skidded, my one foot.' She had never noticed the dance floor being as slick as it was that day. It looked like it had just been polished. Plaintiff's further testimony was that A witness for plaintiff testified that the same afternoon she had had occasions to go across the dance-floor area; she safely walked across the floor; she knew there was a dance floor there and walked across it very carefully.
Plaintiff was aware that the area where she fell was used for dancing, and she was familiar with the way the dining room was lighted.
Other witnesses for plaintiff testified that the floor of the area set aside for dancing was highly polished. One said it was 'very, very, very highly polished.' The floor of the dining room, other than the area where the dance floor was, 'wasn't polished.' One of these witnesses said you could tell the dance floor was highly polished by looking at it--when asked to explain what she meant by the expression 'highly polished' the witness said,
According to defendant's witnesses--defendant's president, its porter, and a patron--the floor throughout the dining room was of asphalt tile; the entire floor of the room was waxed with a well-known floor wax four times per year. On the evenings when a dance band was provided, the area provided for dancing was sprinkled with dance-floor wax. The dance-floor wax was put there to make it easier for dancers 'to glide over the floor.' The first thing each morning the whole of the floor of the dining room was swept, damp mopped, and buffed with a machine. An expert, witness for defendant, said that in order to remove dance-floor wax from a floor a chemical 'stripper' must be used, 'if they want to start all over again.' Defendant had not used such a wax remover. As stated, defendant's evidence was that the floor was swept, mopped and buffed the...
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