Lance v. Van Winkle

• Decision Date: 13 September 1948
• Docket Number: 40662
• Parties: Hulda Lance, Appellant, v. D.C. Van Winkle and S.S. Kresge Company, a Corporation, Respondents
• Court: Missouri Supreme Court

213 S.W.2d 401

358 Mo. 143

Hulda Lance, Appellant, v. D.C. Van Winkle and S.S. Kresge Company, a Corporation, Respondents

No. 40662

Supreme Court of Missouri

September 13, 1948

Appeal from Circuit Court of City of St. Louis; Hon. Charles B Williams, Judge.

Affirmed.

Frank X. Cleary and Harry M. James for appellant; Orville Richardson of counsel.

(1) Even if the testimony of Dr. Quebedeaux be ignored, there was substantial evidence that Williams, the porter, either actually knew, or, in the exercise of ordinary care should have known, of this ice cream in time to have removed it before plaintiff's fall. The porter, Oscar Williams inspected the vestibule less than five minutes before plaintiff fell and is to be charged with actual notice of that which looking would reveal. Weed v. American Car & Foundry Co., 322 Mo. 137, 14 S.W.2d 652; Crane v Liberty Foundry Co., 322 Mo. 592, 17 S.W.2d 945; Barrickman v. Natl. Utilities Co., 191 S.W.2d 265. (2) His testimony that he looked at the vestibule but did not see the ice cream has no probative force. State ex rel. K.C. Southern R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915. (3) Even if the porter did not actually see the ice cream when he inspected this vestibule less than five minutes before plaintiff fell, he and the defendants, through him, are to be charged with constructive notice of its presence. Constructive notice of this condition is to be imputed to Williams at the time of his inspection, even though he did not actually see it, since he can be constructively charged with noting that which looking would reveal. State ex rel. Sirken & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; 38 Am. Jur. 667 ff. (4) No fixed or definite rule can be established as to the length of time a dangerous condition must have continued in order to justify a presumption of notice to an invitor of such condition of its premises. Each case must depend upon its own facts and circumstances. 45 C.J. 655; Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045. (5) If a dangerous condition exists in a busy store, such as that of the defendant Kresge Company, for over thirty minutes, then the jury may infer that the defendant had notice thereof. 45 C.J. 655; Hogan v. S.S. Kresge Co., 93 S.W.2d 118; Smith v. Sears Roebuck & Co., 84 S.W.2d 414; Hubenschmidt v. S.S. Kresge Co., 115 S.W.2d 211; Scott v. Kline's, Inc., 284 S.W. 831; Bankhead v. First Natl. Bank in St. Louis, 137 S.W.2d 594; Vortriede v. St. Louis Public Service Co., 58 S.W.2d 492. (6) Direct testimony of the exact time of the existence of the dangerous condition is not a prerequisite to recovery so long as the proof shows a condition which could not have occurred except by the passage of time, and from whose very character existence may be inferred for a sufficient time to charge the defendant with notice thereof. That is true of the case at bar where the evidence disclosed that in less than 5 minutes after the porter inspected the vestibule the plaintiff slipped on dried, sticky, gummy ice cream. Vortriede v. St. Louis Pub. Serv. Co., 58 S.W.2d 492; Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533; State ex rel. Emery, Bird, Thayer Dry Goods Co. v. Shain, 348 Mo. 650, 154 S.W.2d 775; Ryan v. Standard Oil Co. of Indiana, 144 S.W.2d 170; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558; Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Doyle v. St. Louis Merchants Bridge Term. Ry. Co., 326 Mo. 425, 31 S.W.2d 1010; Gutridge v. Mo. Pac. Ry. Co., 105 Mo. 520, 16 S.W. 943; Kramer v. K.C. Power & Light Co., 311 Mo. 369, 279 S.W. 43; Harrison v. St. Louis-S. F. Ry. Co., 339 Mo. 821, 99 S.W.2d 841; Meierotto v. Thompson, 201 S.W.2d 161; Finn v. Terminal Railroad Assn., 97 S.W.2d 890; Sullivan v. S.S. Kresge Co., 236 Mo.App. 1191, 163 S.W.2d 811; Maybee v. Missouri Orpheum Corp., 181 S.W.2d 771; Haverkost v. Sears, Roebuck & Co., 193 S.W.2d 357; Anjou v. Boston Elevated Ry. Co., 208 Mass. 273, 94 N.E. 386; Hudson v. F.W. Woolworth Co., 275 Mass. 469, 176 N.E. 188; Hartford v. Boston Elevated Ry. Co., 280 Mass. 288, 182 N.E. 476; Manell v. Checker Taxi Co., 284 Mass. 151, 187 N.E. 224; Foley v. F.W. Woolworth Co., 293 Mass. 232, 199 N.E. 739; Zanes v. Malden & Melrose Gas Light Co., 298 Mass. 569, 11 N.E.2d 498; Connair v. J.H. Beattie Co., 298 Mass. 550, 11 N.E.2d 499; Bavosi v. Interstate Theatres Corp., 307 Mass. 124, 29 N.E.2d 688; Berube v. Economy Grocery Stores Corp., 315 Mass. 89, 51 N.E.2d 777; Scaccia v. Boston Elevated Ry. Co., 317 Mass. 767, 57 N.E.2d 761; Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So.2d 29; Morris v. King Cole Stores, 132 Conn. 489, 45 A.2d 710; Moore v. American Stores Co., 169 Md. 541, 182 A. 436; Ellis v. Rosenberg, 15 N.J. Misc. 37, 188 A. 499; Langley v. F.W. Woolworth Co., 131 A. 194; Anderson v. Belk-Robinson Co., 192 S.C. 132, 5 S.E.2d 732. (7) The evidence given by Dr. Quebedeaux had probative value since there was a substantial similarity in the conditions under which his experiments were conducted and those existing at the time of plaintiff's fall. Experimental evidence, like all other evidence, should be admitted if it tends to enlighten the jury and has a logical tendency to establish any fact in issue. If its admissibility is doubtful, it should be permitted to go to the jury. 32 C.J. 440; Godsey v. Thompson, 352 Mo. 681, 179 S.W.2d 44; Luechtefeld v. Marglous, 151 S.W.2d 710. (8) It is not necessary that the conditions under which an experiment is conducted should be exactly identical with those existing at the time of the occurrence in issue; a substantial similarity will suffice. A lack of identity will affect only the weight, but not the competency of the evidence. 32 C.J.S. 442; Carpenter v. Kurn, 348 Mo. 1132, 157 S.W.2d 213. (9) There is no precise test of determining whether substantial similarity has been achieved. The evidence is admissible if it is not likely to mislead the jury. Much rests in the discretion of the trial court. 20 Am. Jur. 630; 2 Jones, Commentaries on Evidence, (2d Ed.), pp. 1368-69, 1375-1377; Lynch v. Missouri-Kansas-Texas R. Co., 330 Mo. 89, 61 S.W.2d 918. (10) That is not to say that the admissibility and sufficiency of such evidence does not remain a question of law; the rejection of such evidence may be reviewed on appeal. 32 C.J.S. 443; 2 Jones, Commentaries on Evidence (2d Ed.), p. 1376. (11) The trial court in granting a new trial exercised no discretion in the case at bar; any discretion which he used in admitting the evidence and in passing upon its sufficiency was exhausted during trial. Schipper v. Brashear Truck Co., 132 S.W.2d 993; McDonald v. Heinemann, 141 S.W.2d 177. (12) In the case at bar, Dr. Quebedeaux' experiments were conducted with the same product on a similar marble slab and exposed to the sun and wind in the same manner that the ice cream upon which plaintiff slipped had been exposed. A substantial similarity was achieved. Cases and authorities cited, supra; Lynch v. Missouri-Kansas-Texas R. Co., 330 Mo. 89, 61 S.W.2d 918; Carpenter v. Kurn, 348 Mo. 1132, 157 S.W.2d 213; James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W.2d 118; Fort Worth & D.C. Ry. Co. v. Yantis, 185 S.W. 969. (13) Under no circumstances should the trial judge have sustained defendants' motion for a judgment without giving to plaintiff an opportunity to retry her case upon other evidence which might be available to her or which she might obtain. If plaintiff's judgment is not reinstated, she should at least be given a new trial. Such is the rule, particularly where a plaintiff may have been misled by a misunderstanding shared by the trial judge. Byrne v. Prudential Ins. Co., 88 S.W.2d 344; State ex rel. Scullin v. Robertson, 187 S.W. 34; Nothstine v. Feldmann, 320 Mo. 500, 8 S.W.2d 912; Bryan v. McCaskell, 175 S.W. 961; Casciaro v. Great A. & P. Tea Co., 238 Mo.App. 361, 183 S.W.2d 833; Knorp v. Thompson, 175 S.W.2d 889; Blasinay v. Albert Wenzlick R.E. Co., 138 S.W.2d 721; Ducoulombier v. Thompson, 343 Mo. 991, 124 S.W.2d 1105.

Wayne Ely and Robert C. Ely for respondents.

(1) Appellant's conclusions can be arrived at only by guess and speculation, which a jury would not be permitted to do. Scotten v. Metropolitan Life Ins. Co., Inc., 81 S.W.2d 313. (2) Appellant cannot rely on inspection with failure to discover as a means of proving constructive notice. McKeighan v. Klines, Inc., 339 Mo. 523, 98 S.W.2d 555. (3) The fact that the ice cream which plaintiff saw was dry, sticky, gummy, and yellow-brown in color with a cone mashed in with it is not evidence from which an inference can be drawn of constructive notice. McKeighan v Kline's Inc., supra; Campbell v. F.W. Woolworth & Co., 117 F.2d 152. (4) This court has drawn a distinction between cases wherein the situation impels only one inference that the condition must have existed for a long time and cases wherein the condition could or might have existed for only a very short time. State ex rel. Trading Post. Co. v. Shain, 342 Mo. 558, 116 S.W.2d 99; Keen v. St. Louis, 189 S.W.2d 139; Uelentrup v. Switzerland Stores, Inc., 164 S.W.2d 650. (5) The case which appellant has designated as the leading case outside of Missouri is not accepted law and has been expressly rejected in Missouri. Taylor v. K.C. Terminal Ry. Co., 240 S.W. 512; North Eastern Citator; O'Neill v. Boston Elevated Ry. Co., 142 N.E. 904; Mascary v. Boston Elevated Ry. Co., 155 N.E. 637; Cartoff v. F.W. Woolworth Co., 160 N.E. 109. (6) The testimony of Dr. Quebedeaux did not tend to prove any issue in this case and had no probative value, because the causal conditions and circumstances as related by plaintiff were not substantially reproduced in the experiment conducted by Dr. Quebedeaux. 2 Jones, Commentaries on Evidence (2nd Ed.), p. 1389. (7) The law of Missouri...