King v. City of St. Louis

• Decision Date: 04 November 1941
• Docket Number: No. 25807.,25807.
• Citation: 155 S.W.2d 557
• Parties: KING v. CITY OF ST. LOUIS.
• Court: Missouri Court of Appeals

155 S.W.2d 557

KING v. CITY OF ST. LOUIS.

No. 25807.

St. Louis Court of Appeals. Missouri.

November 4, 1941.

Rehearing Denied November 18, 1941.

Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.

"Not to be reported in State Reports."

Action by Marion King against City of St. Louis for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed.

E. H. Wayman and Francis Finley, both of St. Louis, for appellant.

Hay & Flanagan and Myrt A. Rollins, all of St. Louis, for respondent.

ANDERSON, Judge.

Marion King brought this action against the City of St. Louis to recover damages for personal injuries, which she alleges she sustained by falling upon a stairway in the Municipal Auditorium.

The case was tried on an amended petition, which, in substance, alleged that on November 18, 1938, while plaintiff was employed as a cleaner in defendant's auditorium, and while she was descending a stairway from the fourth to the third floor of said building and feeling her way along the handrail and banister, the skirt of her dress caught upon the end of an ornamental metal scroll beneath the banister, her feet and legs were caught, and she was caused to be thrown forward and down approximately eight steps, striking upon her left shoulder, and resulting in her sustaining serious and permanent injuries. The amended petition charged that defendant negligently failed to exercise ordinary care to furnish plaintiff a reasonably safe place to work in that it negligently failed to exercise ordinary care to furnish such artificial light as was necessary to light up the stairway at the place where plaintiff fell, so as to make said stairway reasonably safe, when defendant knew or by the exercise of ordinary care would have known that said stairway at said place was dark and unlighted, and that plaintiff could not descend same with reasonable safety unless such artificial light was furnished, and when defendant knew, or by the exercise of ordinary care would have known, that unless said artificial light was furnished, plaintiff would be apt to fall while descending said stairway and thereby injure herself; that the banister below the handrail contained a metal scroll on which the dresses of persons descending said stairway were apt to catch, thereby rendering said stairway dangerous and not reasonably safe for plaintiff's use, when defendant knew or by the exercise of ordinary care would have known of said condition in time thereafter, by the exercise of ordinary care, to have remedied said condition and thus and thereby have avoided plaintiff's injuries.

Defendant's answer consisted of a general denial and a plea of contributory negligence, alleging that whatever injuries, if any, plaintiff may have sustained were the direct result of her own negligence in carelessly, negligently, and inattentively walking at the place alleged in the petition and in not observing where she was walking. To this answer plaintiff replied with a general denial.

At the time of the trial plaintiff was 57 years of age. She had been employed by the City for about five years prior to the date of the accident to do cleaning and dusting in the Municipal Auditorium. She testified that on November 18, 1938, she reported for work about 7 o'clock in the morning, and went to a room on the main floor to change her clothing. She then proceeded to the fourth floor to dust the offices of the symphony orchestra, and after completing this work, she started down a stairway on the west side of the building, intending to go to the first floor to continue her work. Half way between the fourth and third floors there is a landing from which two sets of stairs lead to the third floor.

She also testified: "Now, when I left this fourth floor I started down the steps on the west side. It was 18 or 20 steps and then the landing and I used the banister as a guide as I went along. It was so dark I couldn't see, so I had to trust the banister and guide myself down with the banister; and as I got to the first landing it was a turn and I turned around and reached the second step when something seemed to catch me. * * * I was making the turn, and reached the second step and I was thrown head first, and I struck about the eighth step with my shoulder, and then I sort of somersaulted and fell the rest of the way to the landing below, and I lay there stunned for a while. * * As I started to fall the sensation that I had was that it seemed to me like my dress had caught in that railing and pitched me head first.

"Q. Now, what was the condition of the lights on the steps at that point, Mrs. King? A. They were so dark I couldn't see my way. I just had to feel."

The evidence shows that the switchboard, which contained 60 to 80 toggle switches, including the switch which controlled the lights over the stairway, was located in a room on the first floor of the building.

Plaintiff further testified: "There were no electric lights lit on the stairs that morning. There was no way I could have turned the lights on as I left the fourth floor. There were no switches nor push buttons there on the fourth floor to enable me to turn those lights on. There was no other way to come from that floor besides the elevator and the steps that I was traveling down at the time I was injured. I was as close to the railing as I could get. I did that as a guide. They are wide steps and you have to use the banisters to know where you were. * *

"Q. And who was it that had charge there of a morning — of lighting up that place, if you know? A. They never lit that place up. The stairs was lit up by lights that was up in the ceiling, perhaps 50, and they were never turned on only when we scrubbed them.

"And then the floor man turned them on. I had nothing to do with the turning on of these lights. I did not know how to turn them on. No one ever instructed me to turn them on. In the morning when I came there those lights were usually not burning. On this morning there wasn't anywhere where I walked any outside light on those stairs at that time. There is lights up in the lobby — one light, a very poor light. It is situated back in the alcove showing the colored man how to get into the toilet, and that light was so far away that it didn't cause a reflection."

Testifying as to the panel where the light switches were, she stated: "and in that panel were switches that control the lights. I know that, but we never was allowed to use them. I wouldn't know one button from the other. I knew the panel was there and I knew the switches controlled them. They wasn't ordinary switches, and I wouldn't know where to find them. I wouldn't know which one to turn off. The lobbies, the hallway, the chandelier, and the stairways. I wouldn't know anything about them."

The evidence shows there was a stairway on the east side of the building which plaintiff could have used, which was identical in construction with the one on the west side upon which plaintiff was injured. There was also evidence that on that morning a small light was burning on the fourth floor, at the entrance to the symphony office, and another light in front of the elevator on the east side of the building, both lights being about 15 to 18 feet from the east stairway. Defendant's evidence showed that these lights threw some light down the east stairway, one witness stating that they reflected a little light down the stairway for 7 or 8 steps, and another stating that they lit up the stairway down to the first landing. However, the evidence showed these lights did not cast any reflection on the stairway leading from the landing to the third floor, and defendant's own witness testified those stairways were very dark. The above-mentioned lights did not cast any light upon the stairway on the west side of the building where plaintiff fell.

The testimony further shows that the lights over the stairway, controlled by the switch on the panel board on the first floor, were not lit, and were never turned on between 7 and 9 o'clock in the morning, except when the steps were to be scrubbed, and then they were usually turned on by a watchman who reported for work at 8 a.m. Defendant's evidence, however, showed that the metal box containing these switches was never locked; that the employees were never told not to turn the switches, and that sometimes when they wanted to use those lights they did turn them on. On the morning in question, before going to work on the fourth floor, plaintiff, on her way from the place where she changed her clothes, passed through the room which contained these switches.

The evidence further shows that the elevators were not in regular operation on the premises until 9 a.m., at which time the regular operators reported for duty, and that unless the porter, Mr. Brown, who knew how to operate the elevators, happened to be on the fourth floor at the time plaintiff and the other cleaning women finished their work and desired to go to other floors, the women were compelled to use the stairways; that on the morning in question Brown was not on the fourth floor when plaintiff finished her work. She, therefore, walked from the entrance of the office of the symphony orchestra, which was near the east flight of steps, across the hallway or foyer, to the west flight of steps, and proceeded down those stairs, although nothing prevented her from using the east flight of steps.

Catherine Davenport, testifying for defendant, stated a chart showed where these light switches were located, and showed the switch for each light. She further testified that the panel was never locked, and she was able to turn the lights off and on.

Jesse Brown, the janitor, testified the switch panel was not locked and was available to all.

Mrs. Burke, another cleaning woman, testified that anyone could turn on the lights; that they were never told not to light them; and that sometimes they themselves turned on the lights when they wanted...