Lappin v. St. Louis Nat. League Baseball Club

• Decision Date: 06 January 1931
• Docket Number: No. 21236.,21236.
• Citation: 33 S.W.2d 1025
• Parties: LAPPIN v. ST. LOUIS NAT. LEAGUE BASEBALL CLUB.
• Court: Missouri Court of Appeals

33 S.W.2d 1025

LAPPIN v. ST. LOUIS NAT. LEAGUE BASEBALL CLUB.

No. 21236.

St. Louis Court of Appeals. Missouri.

January 6, 1931.

Rehearing Denied January 23, 1931.

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

"Not to be officially published."

Action by Catherine Lappin against the St. Louis National League Baseball Club and another. Judgment was entered for plaintiff against named defendant, and named defendant appeals.

Reversed and rendered.

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

Charles A. Lich, of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment in favor of plaintiff, the defendant contending that the court ought to have sustained its demurrer to the evidence.

The amended petition was brought against the owner of the real estate and the St. Louis National League Baseball Club, lessee of the premises, but was dismissed by the plaintiff as to the former at the close of the plaintiff's case.

The petition alleged that she purchased a ticket from the baseball club for admission to the ball game being played upon the leased premises, and that because of a heavy rain having come up shortly after the commencement of the game, the game was called, and it thereupon became necessary for her to leave her seat in the grand stand and to make her way homeward; that in leaving the grand stand it was necessary for her to descend therefrom to the ground level, and in order to do so she was obliged to make use of a stairway in said grand stand, and that as she was descending said stairway the steps thereof were filled with pools and puddles of water, and that because of the absence of a hand rail she was unable to hold to anything in descending; and that in descending said stairway her feet slipped from under her and she fell and sustained serious injuries. She set out six specifications of negligence, but the case was submitted to the jury on the fifth specification of negligence, which alleged failure to provide a hand rail at the sides of the stairway, to which plaintiff and others using said stairway could hold when descending. The answer was a general denial.

The plaintiff testified that she had been attending ball games since 1923 and had not missed a game in 1926, 1927, and 1928; that she attended a game on May 4, 1928, and after having taken her seat the game was called on account of wet grounds; that she proceeded to leave the grand stand by the first exit which was above the level of the ground and consisted of seven or eight concrete steps with a concrete wall on either side; that as she descended she was as near the right of the steps as her shoulders would permit her to be and that it had stopped raining; that it had not rained for about fifteen minutes or so before she started to descend the stairs and that there were just a few people ahead of her but quite a number back of her; that there was no rail or anything to hold to; that the steps were between seven and eight feet wide; that she was looking where she was walking and there was nothing to prevent her from seeing water on the steps, but as she stepped down to the second step from the top, in the center, she stepped into the water and slipped therefrom to the bottom of tthe stairway and was injured; that about three-quarters of the stairway in the center of the steps had water upon them and to her seemed worn; not a hollow large enough to put anything in, but they were sloped from the ends toward the middle; that there were a number of exits, but she did not feel like going around and getting wet; that she always took the particular exit whether raining or not; that on the day of the accident she wore shoes with rubber heels.

The defendant introduced evidence to the effect that in tests made before the trial, by pouring water over the steps in question, the water did not form any puddles but flowed off the steps within a few minutes; that the steps just sloped slightly toward the front. The treasurer of the defendant testified that he had been connected with the club for twelve years, having his office on the grounds, and that in that time there had never been an accident at the place in question.

An engineer testified on behalf of defendant that the steps were constructed of concrete, commonly known as the blow process, that is, the tread or the surface of the steps that the foot rests on is rough to keep one from slipping; that the steps have a distinct fall or slope, which is a standard construction with concrete, so that water will not stand on it; that every well-constructed step in any building has that same slope; that handrails are not practicable there for the reason that it has been found from long experience that where crowds are handled, and in baseball parks where they crowd, that where siderails are put on people bump against them and are hurt; they are shoved against them; sometimes they even shove rails over; if you put rails along the sides, people in coming down will shove others against those rails and go into the sides. They have been taken down time and again for that reason; that the steps were designed in the way that any good architect would design them where crowds are being handled.

It is undisputed that plaintiff was an invitee, and therefore rightfully upon the premises occupied and used by the defendant for public baseball games. The duty defendant owed to plaintiff, under such circumstances, is stated in the case of Vogt v. Wurmb, 318 Mo. 471, 300 S. W. 278, 279, in this way:

"The owner of lands is liable in damages to those coming thereon, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the premises, which is known to him and not to them, and which he has suffered negligently to exist, and of which they have received no notice." (Citing many cases.)

The above case then approvingly quotes the rule as stated in 20 R. C. L. 56, par. 52, which states that there is no presumption of negligence merely upon a showing that an injury has been sustained by one while rightfully upon the premises, and, "hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant."

See, to the same effect, Cash v. Sonken-Galamba Co. (Mo. Sup.) 17 S.W.(2d) 927, loc. cit. 929, and cases cited.

In the present case the testimony of the plaintiff shows that before the accident she had been a regular attendant at the ball games at defendant's park for three seasons, and that she had always used the particular exit which she used on the day of the accident, so that she must have observed the absence of handrails, and with reference to any danger arising from the absence of such rails she was as completely advised as the defendant.

In addition to this knowledge on her part, the evidence of one of the witnesses discloses that this condition, to his knowledge, had existed for a period of twelve years, and during that time there had never been an accident at the place in question. And added to this is the testimony of an engineer that in places such as defendant's park where large crowds congregate, handrails on stairs such as those in question are a menace, because persons are apt to be shoved against them and are hurt.

Plaintiff, in support of her contention that the case was properly submitted to the jury,...