Hubenschmidt v. S. S. Kresge Co.

• Decision Date: 05 April 1938
• Docket Number: No. 24489.,24489.
• Citation: 115 S.W.2d 211
• Parties: HUBENSCHMIDT v. S. S. KRESGE CO.
• Court: Missouri Court of Appeals

115 S.W.2d 211

HUBENSCHMIDT v. S. S. KRESGE CO.

No. 24489.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Rehearing Denied April 20, 1938.

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

"Not to be published in State Reports."

Action by Eleanor Hubenschmidt against S. S. Kresge Company, Incorporated, for injuries sustained when plaintiff tripped and fell upon stairway in defendant's store. From a judgment for $3,000 for the plaintiff, defendant appeals.

Affirmed.

Wayne Ely and Lyon Anderson, both of St. Louis (Leahy, Walther, Hecker & Ely, of St. Louis, of counsel), for appellant.

Eagleton, Waechter, Yost, Elam & Clark, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries which were sustained by plaintiff on May 6, 1935, when she slipped and fell upon a stairway in defendant S. S. Kresge's store which is located on Sixth street between St. Charles street and Washington avenue, in the city of St. Louis. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the sum of $3,500, which was $500 in excess of the amount claimed in the petition. Plaintiff voluntarily remitted the amount of the excess, and from the judgment which was thereupon entered in her favor for $3,000, defendant has duly perfected its appeal to this court.

There are two entrances into the store off of St. Charles street, the one at the extreme corner of the building at Sixth street, and the other some fifteen or twenty feet farther to the east near the middle of the building. The stairway in question is located directly opposite the middle entrance, with the head of the stairs about eight or ten feet in from the door. It faces to the north, and leads from the first floor down into the basement where defendant has a number of its departments.

The stairway proper consists of eighteen steps, and terminates at a landing from either side of which two additional steps lead down to the basement floor. Down the center of the stairway is a railing which serves to divide the stairway into two separate sections, the one to the east being for persons going from the first floor down into the basement, and the one to the west being for persons coming from the basement up to the first floor. There is a similar railing supported by open grillwork on either side of the stairway, while on the first floor there are counters for merchandise which surround the opening except for the head of the stairway itself.

The steps are constructed of some composition material, and are "light gray and white with ivory, mixed in with a darker color." Though plaintiff' described them as being "smooth as marble," what she had in mind was the fact that there were no treads of any sort upon them; and there is no claim that the composition material is itself inherently slippery, or that there is any defect in the construction of the stairway.

On the contrary, plaintiff's theory of negligence was that at the time she attempted to descend the stairway the steps were wet and covered with a slimy and slippery substance which rendered them unsafe and dangerous and likely to cause persons using the stairway to slip and fall and be injured, and that defendant had known, or by the exercise of ordinary care could have known, of such unsafe and dangerous condition of the stairway in time to have remedied the same before the occurrence of her fall, but had negligently failed to do so.

Defendant's own evidence disclosed that there are "a great number of people in that store daily," and that "on rainy days, with the water running off of their umbrellas, dripping off of raincoats, and tracked in off of their feet, water is naturally tracked in across the floor and down that stairway." Because of this fact defendant employs a porter "whose duty it is to mop up the steps," after which he sprinkles a specially prepared powder upon them. This "often happens on rainy days." The porter himself testified that there is "considerable water brought in" on rainy days, which "necessitates you keeping those steps dry," and it was shown that in the performance of his chief duty of keeping the floors and stairways clean he was supposed to make regular rounds of the building, each of which would require from fifteen to twenty minutes of time and would include his going over the stairway upon which plaintiff fell.

On the day in question "it had rained hard off and on all day long," but notwithstanding this fact there was evidence to show that for some reason the stairway had not been mopped with the customary regularity. Defendant's maintenance man, who had charge of the porters and was "supposed to see that the floors and stairs are clean," stated on cross-examination, "I don't think the porter had mopped those steps that day." Indeed, the porter himself testified in the course of his own cross-examination, "I am sure I didn't mop them at any time during the day other than in the morning."

The accident happened at approximately 5 o'clock in the afternoon. Plaintiff, who was about twenty-three years of age at the time, had gone to the store for the purpose of buying some bird seed, and had been directed by one of the saleswomen to go down the stairway into the basement where the "pet counter" was located. She "had on sport shoes with medium heels — what they call a walking heel," and was carrying her purse and a package she had purchased, and in addition had her parasol tucked under her arm.

Plaintiff started down the stairway along the right or outer railing, but upon observing a woman standing looking in her purse a half dozen steps below her, moved over to the left along the center railing. She was on about the fourth or fifth step from the top when her...