Keady v. Stix, Baer & Fuller Co.

• Decision Date: 02 April 1929
• Docket Number: No. 20583.,20583.
• Court: Missouri Court of Appeals
• Parties: KEADY v. STIX, BAER & FULLER CO.

15 S.W.2d 379

KEADY v. STIX, BAER & FULLER CO.

No. 20583.

St. Louis Court of Appeals. Missouri.

April 2, 1929.

Rehearing Denied April 16, 1929.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Margaret R. Keady against the Stix, Baer & Fuller Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Goodman & Stephenson and Henry S. Cooke, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, sustained by plaintiff on May 6, 1926, while present in defendant's store as a customer or invitee. The verdict of the jury was in favor of plaintiff, and against defendant, in the sum of $5,600; and, from the judgment rendered, defendant has duly appealed.

The petition charged that defendant was at all times in the control and management of its store; that plaintiff, at the invitation of defendant, was inspecting certain pieces of linoleum on one of the floors of defendant's establishment, and was exercising ordinary care for her own safety; that, at the time, defendant suffered and permitted certain rolls of linoleum to be placed on end in a vertical position, and to be and remain at, and in back of, the place where plaintiff was invited to be; and that, while plaintiff was engaged in inspecting the pieces of linoleum on the floor, the rolls of linoleum standing in back of her were, as the direct and proximate result of the negligence and carelessness of defendant, allowed and permitted to fall down and upon her with great force and impact, whereby she was thrown to the floor, and caused to sustain serious injuries.

The answer filed by defendant was in the form of a general denial.

Briefly, the evidence disclosed that plaintiff, in company with a friend, Mrs. Esther Zubiena, went to the rug department on the sixth floor of defendant's mercantile establishment for the purpose of purchasing a linoleum rug. Finding that the particular pattern she desired was not in stock at the time, defendant's salesman requested her to look through a sample book; and, for her convenience, placed the same upon the top of a pile of small rugs, extending two and a half or three feet above the floor. Four or five feet away from the pile of rugs was a pillar or column, around which a number of rolls of linoleum were standing on end, each roll consisting of a nine by twelve rug, and weighing thirty pounds. Plaintiff testified that she had last seen the rolls standing upright a matter of one or two minutes before she turned to look through the sample book.

While plaintiff was stooped over the sample book, with her back to the rolls, and while Mrs. Zubiena was standing by her side in a similar position, as many as five of the rolls were in some unexplained manner caused to fall over upon plaintiff, rendering her unconscious, and otherwise injuring her. The evidence was uncontradicted that neither plaintiff nor Mrs. Zubiena had touched the rolls, and that plaintiff had no knowledge of what caused them to fall.

The only evidence for defendant as to the circumstances surrounding the accident was that given by the salesman, who testified that, while plaintiff and Mrs. Zubiena were turning through the sample book, he walked over to the rugs which were standing around the pillar, and stooped down to read certain notations as to size, which appeared on a sticker pasted on one of the rolls; that, while he was in this position, he glanced up, and saw two of the rolls falling; and that he saw no one touch the rolls, and did not know what caused them to fall. He testified further, that no precautions had been taken by defendant to keep the rolls from toppling over, and that he had never heard of any means being employed for such purpose.

Defendant has three assignments of error, the first directed to the sufficiency of the petition; the second, to the sufficiency of the evidence; and the third, to the propriety of plaintiff's instruction No. 1—all of which challenge the application of the res ipsa loquitur doctrine to the facts of the case at bar.

As a basis for its point that the petition does not state a cause of action under the doctrine of res ipsa loquitur, defendant argues that the petition does not allege and show that the facts with reference to the cause of the injury were more accessible to defendant than to plaintiff; that the case stated shows no necessity for an exception to the general rule that the plaintiff must plead and prove actual negligence on the part of the defendant; and that the petition does not state facts sufficient to authorize the conclusion pleaded, namely, that plaintiff's injury resulted from the carelessness and negligence of defendant.

In the view we take of the petition, the criticisms lodged against it are wholly untenable. Generally speaking, the rule is that, when the agency or instrumentality which causes an injury is within the exclusive control of the defendant, and moves or is operated in such an unusual manner that such motion or operation could not have happened except for some negligent act, the doctrine of res ipsa loquitur will apply. Consequently, the cases hold that a petition which describes merely the general circumstances of the incident, and the agency or instrumentality under the exclusive management and control of the defendant by which the plaintiff's injury was received, which makes no pretense of pointing out the particular act or defect which brought about the injury, and which does no more than allege the ultimate facts concerning the relationship existing between the plaintiff and the defendant, and the manner in which the plaintiff was injured, pleading generally that his injury was received through the carelessness and negligence of the defendant, must be regarded as stating a cause of action under the doctrine of res ipsa loquitur. Porter v. St. Joseph Ry., Light, Heat & Power Co., 311 Mo. 66, 277 S. W. 913; Bergfeld v. Kansas City Rys. Co., 285 Mo. 654, 227 S. W. 106; Carlson v. Wells (Mo. Sup.) 276 S. W. 26, 42 A. L. R. 1319; Chapman v. Davis (Mo. App.) 287 S. W. 832; Gibbons v. Wells (Mo. App.) 293 S. W. 89; Lich v. Wells (Mo. App.) 296 S. W. 1043.

Now, in this instance, the petition showed merely the relationship of invitee and invitor existing between plaintiff and defendant; it went no further than to describe the situation with reference to the manner in which the rolls of linoleum were placed upon the floor; it charged that the store was at all times under the control and management of defendant; and, without attempting to state the reason for the falling of the rolls, it simply alleged that, while plaintiff herself was in the exercise of ordinary care, the rolls fell as the direct and proximate result of the carelessness and negligence of defendant,...