Kappel v. Sonnenifild Millinery

Decision Date21 June 1927
Docket NumberNo. 19704.,19704.
Citation296 S.W. 1055
PartiesKAPPEL v. SONNENIFILD MILLINERY CC.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Helen Kappel against the Sonnenfeld Millinery Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Holland, Rutledge & Lashly and Watts es Gentry, all of St. Louis, for appellant.

Mark D. Eagleton, Fred Berthold, John F. Clancy, and Harry S. Rooks, all of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries sustained by plaintiff while she was a customer or prospective purchaser, in defendant's store, in the city of St. Louis.

Plaintiff was injured on a dress gauge or marker, while she was in a fitting room in defendant's place of business. There were several assignments of negligence in the petition, but all were withdrawn from the jury except the assignment that the defendant failed to have or maintain said fitting room adequately or sufficiently lighted. Plaintiff recovered judgment for $3,500, and defendant appeals.

From the testimony offered on the part of plaintiff, it appears that she was a young lady about twenty-one years old, unmarried, and resided with her father and mother. On Saturday afternoon, May 24, 1924, she went to the fifth floor of defendant's place of business, and tried on a dress which she had purchased. She then went to meet her cousin, Nellie Cook, on the third floor of defendant's store. She was on this third floor for the purpose of aiding her cousin in the selection of a dress. One of defendant's fitters was called, and she and plaintiff, Miss Cook, and a saleslady all went into the fitting room where dresses were tried on. This fitting room was about six feet square, and was located against the east wall of the building. The three other walls of the fitting room extended up six feet or more. The top of the fitting room was open. There was one entrance door in the fitting room. The floor was covered with dark green carpeting, and in this room was a small platform about nine inches high, on which the customer would stand while the dress was being fitted and marked. For the purpose of getting the bottom of the skirt an even distance from the floor, the fitters would use gauges or markers. These gauges consisted of an iron vertical shaft about fifteen inches high, mounted on a circular base about five inches in diameter. On this shaft was a movable part, which could be raised or lowered on the shaft. After this movable part was fastened at the proper height, the one using it would take chalk, which would be emitted from this part, and mark the dress or skirt as the wearer turned around with it touching the gauge.

There were two of these markers or gauges in this fitting room, although only one was being used. This one was standing on the platform on which Miss Cook was standing. The other had not been in use, and was standing on the floor away from the platform.

After the particular dress, which was being fitted, had been marked and pinned up, plaintiff had some doubts about it being even, and stooped or squatted down to point out the place where it was uneven. She did this very suddenly, and in doing so came in contact with the shaft of the gauge, which entered her private parts and caused serious injury. It is unnecessary to set out the injuries in detail, because no point is made here that she was not injured, or that the verdict is excessive.

There is conflict in the testimony as to whether the injury occurred on third or fourth floor, as well as to matters relating to the number .of lights. The plaintiff testified that there was a swinging door to this fitting room which closed after they went in. She said there was no artificial light in the fitting room, and neither the saleslady or the fitter turned on any light after they went in. The only illumination in the fitting room, according to her testimony, came from a large light in the ceiling of the big room, near the corner of which the fitting room was located. This light, she testified, was 20 feet or more northwest of the fitting room.

The dress being fitted on Miss Cook was light yellow in color. When the fitter came into the room she brought with her in her hand the skirt gauge, placed it on the platform, and used it in marking the dress, but plaintiff did not see any other gauge on the floor until after she was injured. She was observing the length of Miss Cook's dress, and stated that she thought it was too long. Plaintiff, in order to show her, suddenly stooped or squatted, and in doing so received her injury. The color of the gauge was black or a dark color. Plaintiff was wearing a two piece tan suit, under which she wore a petticoat and a teddy bear. Before she stooped, she was standing over the gauge so that it struck her without touching any of her clothing.

Nellie Cook testified on behalf of plaintiff that she met plaintiff on the third floor of defendant's store by appointment, on a Saturday afternoon. They both looked around at dresses on that floor. She was buying a dress, and had asked plaintiff to go with her. She says the saleslady went into the fitting room first, and then, "All of us went into it. The room was dark, and no lights were turned on by any one as we went in." Neither the saleslady nor the fitter said anything to either plaintiff or herself about the marker being in there. One marker was brought into the room by the fitter. From the condition of the fitting room, she says she was not able to see the...

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6 cases
  • Mangiaracino v. Laclede Steel Co., 37132.
    • United States
    • Missouri Supreme Court
    • December 11, 1940
    ...the particular manner or kind of injury; it is sufficient if he should have anticipated some injury. Kappel v. Sonnenfeld Millinery Co., 296 S.W. 1055; Howard v. Sacks, Inc., 76 S.W. (2d) 460; Freeman v. Term. Railroad Assn., 107 S.W. (2d) 36; Mrazek v. Term. Railroad Assn., 111 S.W. (2d) 2......
  • Mangiaracino v. Laclede Steel Co.
    • United States
    • Missouri Supreme Court
    • December 11, 1940
    ... ... injury; it is sufficient if he should have anticipated some ... injury. Kappel v. Sonnenfeld Millinery Co., 296 S.W ... 1055; Howard v. Sacks, Inc., 76 S.W.2d 460; ... Freeman ... ...
  • Cash v. Sonken-Galamba Co.
    • United States
    • Missouri Supreme Court
    • March 27, 1929
    ... ... Ingram v. Coal Co., 5 S.W.2d 413; Von Eime ... v. Fuchs, 8 S.W.2d 824; Koppel v. Millinery ... Co., 296 S.W. 1055; Alexander v. Barnes & Co., ... 7 S.W.2d 370. (2) Aside from all ... ...
  • Cash v. Sonken-Calamba Co.
    • United States
    • Missouri Supreme Court
    • March 27, 1929
    ...contributory negligence as being for the jury. Ingram v. Coal Co., 5 S.W. (2d) 413; Von Eime v. Fuchs, 8 S.W. (2d) 824; Koppel v. Millinery Co., 296 S.W. 1055; Alexander v. Barnes & Co., 7 S.W. (2d) 370. (2) Aside from all questions of estoppel, still whether plaintiff was contributorily ne......
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