Ilgenfritz v. Missouri Power & Light Co.

• Decision Date: 19 February 1937
• Docket Number: 34172
• Citation: 101 S.W.2d 723,340 Mo. 648
• Parties: Margaret C. Ilgenfritz, Appellant, v. The Missouri Power & Light Company, a Corporation
• Court: Missouri Supreme Court

101 S.W.2d 723

340 Mo. 648

Margaret C. Ilgenfritz, Appellant, v. The Missouri Power & Light Company, a Corporation

No. 34172

Supreme Court of Missouri

February 19, 1937

Appeal from Adair Circuit Court; Hon. Harry S. Rouse Judge.

Affirmed.

Murrell & Murrell for appellant.

(1) The evidence is sufficient to justify the submission of the cause to a jury, and the court erred in sustaining defendant's demurrer at the close of plaintiff's case.It was for the jury to determine whether or not under all the circumstances in evidence it was negligence on the part of the defendant to maintain the floor in question in a slick and slippery condition.Moore v. Great Atlantic & Pacific Tea Co.,92 S.W.2d 912;Wendt v. Zittlosen Mfg Co.,229 S.W. 1107;Berry v. Sedalia,212 S.W 34;Scott v. Kline's, Inc.,284 S.W. 831;Mueller v. Ralston Purina Co.,254 S.W. 720;Belzer v. Sears & Roebuck Co.,76 S.W.2d 701;Savona v. May Department Stores Co.,71 S.W. 157;Milzark v. Natl. Biscuit Co.,259 S.W. 832;Watson v. Aronberg,15 S.W.2d 356;Majestic Theater Co. v. Lutz,275 S.W. 16;Woolworth Co. v. Brown,79 S.W.2d 363;Kroger Grocery & Baking Co. v. Monroe,34 S.W.2d 929;Abramson v. Grant Co.,170 A. 815;Tack v. Ruffo,263 Mass. 487.(2) The condition of the floor was produced by the occupant on its own premises, and under the evidence, defendant is chargeable with knowledge thereof.This knowledge was superior to that of plaintiff.Whether plaintiff was guilty of contributory negligence under all the facts and circumstances in evidence was for the jury, and depends upon the peculiar circumstances of the case.(a) Contributory negligence is failure to exercise the degree of care for one's safety usually exercised by reasonably careful and prudent men in the same circumstances, which failure causes or helps to bring about the injury, and if it is a matter on which the minds of reasonable men might differ, then it is not contributory negligence as a matter of law.Tack v. Ruffo, supra;McKeighan v. Kline's, Inc.,98 S.W.2d 557;Tibbets v. Ry. Co.,219 S.W. 109;Herrill v. Ry. Co.,23 S.W.2d 102;Scanlan v. Kansas City,19 S.W.2d 522;English v. Sahlender,47 S.W.2d 150;Sisk v. Railroad Co., 67 S.W.2d 830.

Hunter & Chamier and E. M. Jayne for respondent.

(1)This case must be determined on appeal on the same theory as that on which it was tried below.Feil v. Wells,282 S.W. 25;Snyder v. Am. Car Co.,14 S.W.2d 603;Munford v. Sheldon,9 S.W.2d 907.There was no charge in the petition that respondent's floor had hidden defects or dangers and that respondent failed to warn appellant of the same.The case was submitted below on the theory that "Defendant had . . . negligently placed upon the floor . . . a large amount of wax, oil or other substance," and must be considered here on that allegation alone.Munford v. Sheldon, supra.(2) The demurrer to appellant's evidence was properly sustained.Mullen v. Sensenbrenner Merc. Co.,260 S.W. 982;Cluett v. Union Electric,220 S.W. 865;Cluett v. Union Electric,205 S.W. 72;Peck v. Yale Amusement Co.,195 S.W. 1033.(3) A storekeeper is not an insurer of the safety of those who enter his place of business.The only theory under which he can ever be held liable is because of his superior knowledge of conditions that obtain and when the other person has the same means of knowledge and the same information that he has he is under no duty to warn them.Vogt v. Wurmb, 300 S.W. 270.

OPINION

Hyde, C.

This is an action for personal injury alleged to have been caused, September 19, 1932, by a fall upon a slick floor.At the close of plaintiff's case the court gave and read to the jury a peremptory direction to find for defendant.Thereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside.Motion to set aside was duly filed, but was overruled and plaintiff appealed from the judgment of dismissal.

This case was heard in Division One, but was transferred to the court en banc because the judges of that division were equally divided on the two divisional opinions.[Sec. 4, Amendment of 1890 to Art. VI, Constitution.]The facts were, as stated in the divisional opinion of Bradley, C., as follows:

Plaintiff, an osteopathic physician, sixty-two years old at the time of accident, sought to recover $ 25,000 for her injuries.She and her husband were customers of defendant at Kirksville, and on the day of injury, she went to defendant's office to pay a light bill.She alleged that the defendant"had carelessly and negligently placed upon the floor of its said store and building a large amount of wax, oil, or other substance, and had caused and permitted the floor of said building, office and storeroom to become dangerous and unsafe for persons walking thereon; that while plaintiff was in said building and office and place of business as aforesaid, and due to the carelessness and negligence of said defendant in permitting and causing the floor of said building and place of business to become dangerous to persons walking thereon, she slipped and fell upon the floor of said premises and sustained severe and permanent injuries; that at all of said times, said defendant knew, or by the use of reasonable care, should have known, that the floor of said building and storeroom was slippery and was dangerous and unsafe for persons to walk thereon; that as a result of said fall, and that by reason of the carelessness and negligence of the defendant as aforesaid,"plaintiff received the injuries complained of.The answer was a general denial.The sole question is: Was there any substantial evidence tending to show any such negligence on the part of defendant?

Defendant's office was on the north side of the square in Kirksville.The cashier's cage was on the west side of the building and forty or fifty feet north from the front door.Plaintiff entered at the front door and walked to the cashier's window, paid her bill then started to leave, going out the same way she entered.When about eighteen feet from the cashier's window her feet suddenly slipped out from under her and she fell on her hip and back and was injured.The floor was covered with waxed and polished linoleum.We set out the substance of plaintiff's evidence without reference to direct and cross-examination.Plaintiff testified that she was just walking along and all at once her feet went out from under her; that "both of my feet just went right out quick, right from under me;" that the place where she fell was slick, "was decidedly slick.Q.What were you doing as you walked towards the door?A.I had the bill in my hand.I was just looking at my pocket book and I started to put the bill in my pocket book."Plaintiff said that the shoes (which were exhibited to the jury)she was wearing on the occasion of her injury, and not worn since, had leather soles and heels and "showed evidence of wear;" that no rubber was on the soles or heels; that the room was light; that she had on prior occasions been to this office to pay her bills; that the floor covering was the same that had been there before."Q.Did you observe it as you went in there?A.Why, yes, I just glanced down as I went in there like anybody would. . . .It looked like a linoleum floor that had been waxed; there was some kind of dressing on it. . . .I was walking rather slowly.My walk now is slow.At that time it was just medium.I didn't go awful fast and I didn't poke around.Q.Now, Mrs. Ilgenfritz, you say that the floor appeared slick.There wasn't anything visible on the floor there at that time?A.It just looked slick.I didn't see anybody applying anything to the floor.Q.All that you know about was that you did slip there?A.Yes, sir.Q.But when you afterwards looked, there was nothing on the floor there?A.Well, it just looked slick.There was something that made me fall, made it unusually slick there or I wouldn't have fallen.Q.When you say 'slick' you mean it was just smooth?A.Well, I would term it -- it just looked slick, as you look over anything and can see where it is shiny and slick looking.I didn't observe it (the floor) closely when I went in . . . I saw the floor when I went in there.When I passed out I did not look at the floor -- I never looked especially only to see that I can walk over something; just like anybody does. . . .I do not know whether the floor was level or not. . . .As far as I noticed there was no particular difference between this particular place and the rest of the floor.I didn't look at the rest of the floor as carefully as I did over there, because I kept wondering -- I didn't notice any place else at all but that one place.I didn't notice the rest of the floor. . . .After I looked (from a chair in which she was placed after the fall) over there and saw the condition of the floor, I thought possibly that (the condition) had something to do with it and that it had caused it. . . .Q.Dr. Ilgenfritz, you stated this morning that you looked at the place where you slipped and fell and that the same was glossy and slick.What was the dimensions of the place that you spoke of?A.I would say it was about two or two and a half feet, something like that, across.Q.Youmean in diameter?A.In diameter, yes, sir.Q.Now, how are you able to fix the size of the place where you slipped there?A.Well, it looked different.It looked different from what it did over in the other part.Q.Surrounding that did it appear glossy and slick?A.Not so much so as that one place there seemed to be the place that was the slicker, or slick."Plaintiff said that the place where she fell was "about 18 feet from the cashier's cage, going towards the door."

Lloyd Jones testified that until a short time prior to plaintiff's fall, he was in...