Lindquist v. S. S. Kresge Co.

• Decision Date: 23 January 1940
• Docket Number: 35255,36713
• Citation: 136 S.W.2d 303,345 Mo. 849
• Parties: Hulda Lindquist, Appellant, v. S. S. Kresge Company, a Corporation and Daniel K. Patrick
• Court: Missouri Supreme Court

136 S.W.2d 303

345 Mo. 849

Hulda Lindquist, Appellant, v. S. S. Kresge Company, a Corporation and Daniel K. Patrick

Nos. 35255, 36713

Supreme Court of Missouri

January 23, 1940

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Affirmed.

S H. Goldsmith and Johnson, Garnett & Quinn for appellant.

(1) The trial court committed reversible error in giving defendant's Instruction N, telling the jury that if the injuries to plaintiff were accidental, she could not recover. There is no evidence to justify an accident instruction in this case. Hogan v. K. C. Pub. Serv. Co., 322 Mo 1103, 19 S.W.2d 707; Brewer v. Silverstein, 64 S.W.2d 289; Wilson v. Chattin, 335 Mo. 375, 72 S.W.2d 1001; Goodwin v. Mo. Pac. Ry. Co., 335 Mo. 398, 72 S.W.2d 988; Tash v. St. L.-S. F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 698; Buchanan v. Wolff, 105 S.W.2d 30; Walker v. Klein, 127 S.W.2d 51. (2) Defendant's Instruction O is reversibly erroneous because casting the burden of proof upon plaintiff as to any and every issue submitted, thus erroneously placing the burden of proof on the issue of contributory negligence on plaintiff. Manar v. Taetz, 109 S.W.2d 721. (3) The trial court erred in rejecting plaintiff's offer of proof of other accidents, the evidence thereof tending to establish the dangerous character of the defective condition of the step and defendants' knowledge of the danger. Asbury v. Fid. Natl. Bank & Trust Co., 100 S.W.2d 946; Hebenheimer v. St. Louis, 269 Mo. 92, 189 S.W. 1180; Manson v. May Department Stores, 71 S.W.2d 1081. (4) The demurrer to the evidence was properly overruled, and the trial court was in error in overruling the motion for new trial upon the stated ground that the demurrer should have been sustained. Capstick v. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480. (5) The trial court, by overruling the motion for new trial upon the stated ground that "the verdict is for the right party," erroneously attempted to consider and finally determine the weight of the evidence, thereby denying plaintiff's right of trial by jury contrary to the provisions of Section 28 of Article II of the Constitution of Missouri. Sec. 28, Art. II, Mo. Const., Sec. 1003, R. S. 1929; Boyce's Admr. v. Smith's Admr., 16 Mo. 321; Van Loon v. St. Joseph Ry., L. & P. Co., 271 Mo. 209, 195 S.W. 737; Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W.2d 911; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126. (6) Under the evidence the negligence of defendant Patrick was for the jury, and the trial court erred in compelling a nonsuit as to him.

Roger C. Slaughter and Henry L. Jost for respondents.

(1) Defendants each were entitled to a peremptory instruction and a directed verdict in their favor, as requested at the close of plaintiff's evidence, and again at the close of all the evidence, and the trial court was right in refusing plaintiff a new trial, on the assigned and correct ground that it should have sustained the separate instruction requests of the defendants for a peremptory verdict, and moreover, because the verdict of the jury being for defendant Kresge Company was for the right party. This for several reasons: (a) The petition did not state a cause of action. The averments therein that the steps had worn smooth and slick from use and wear, in and of itself stated no cause of action, and said facts did not warrant the asserted conclusions of the pleader that the steps were so "dimly and improperly lighted" that the same were "in an unsafe and dangerous condition." Lappin v. St. L. Natl. League Baseball Club, 33 S.W.2d 1026; Myers v. Strauss, 264 S.W. 801; Mulen v. Sensenbrenner Merc. Co., 260 S.W. 984, 33 A. L. R. 179; Stein v. Buckingham Realty Co., 60 S.W.2d 714; Boyd v. Logan-Jones D. G. Co., 340 Mo. 1106, 104 S.W.2d 348, Zasemowich v. Amer. Mfg. Co., 213 S.W. 802; Peck v. Yale Amusement Co., 195 S.W. 1034; State ex rel. Smith v. Sevier, 92 S.W.2d 102. (b) No cause of action can be predicated alone on evidence of marble steps worn down by use five-eighths of an inch where travel thereover is greatest, especially when such material is in common use and regarded as the very best that can be used for such purpose. (c) Plaintiff's evidence utterly failed to show that the stair step whereon plaintiff claims she fell, or that any part of the stairway of which the same was a part, was "dimly and improperly lighted," and on that ground and because of a failure of proof on that point, as well as on the preceding points above made and stated, plaintiff was not entitled to recover, and defendants were entitled to a directed verdict. Peck v. Yale Amusement Co., 195 S.W. 1034; Main v. Lehman, 243 S.W. 91, 294 Mo. 588; Boyd v. Logan-Jones D. G. Co., 104 S.W.2d 348, 340 Mo. 1100; Capstick v. Sayman, 327 Mo. 1, 34 S.W.2d 480. (d) Plaintiff by walking up the stairs "ten to fifteen minutes" before her descent thereon, and by her use thereof and on the same stairs and steps previously for several years (20, on cross-examination), with no appreciable difference in lighting thereof acquired and had the same knowledge of the conditions of which she complained, as did the defendant's and using such steps and stairway with such knowledge, or opportunity for such knowledge, she was not entitled to recover, and the verdict of the jury was properly for defendant. Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Paubel v. Hitz, 339 Mo. 278, 96 S.W.2d 369; Mulen v. Sensenbrenner Merc. Co., 260 S.W. 985; 33 A. L. R. 180; Cash v. Sonken-Galamba Co., 17 S.W.2d 927, 322 Mo. 357, 20 R. C. L., p. 31, sec. 24; Boyd v. Logan-Jones D. G. Co., 340 Mo. 1107; Curtis v. Capitol States Co., 27 S.W.2d 750.

OPINION

Gantt, J.

Action to recover $ 15,000 for personal injuries. Plaintiff sustained injuries while descending a stairway in defendant company's store. Defendant Patrick was manager of the store. An involuntary nonsuit was taken by plaintiff as to Patrick, and the jury found in favor of the company. The court overruled plaintiff's motion for a new trial, but made no order with reference to plaintiff's motion to set aside the nonsuit. Unaware of the failure to rule on the motion to set aside the nonsuit, plaintiff took an appeal, which is docketed as No. 35,255. Later the motion to set aside the nonsuit was overruled and an order of dismissal entered. Plaintiff appealed from said order, which is docketed as No. 36,713. The appeals have been consolidated, and the cause is for consideration on the order overruling the motion for a new trial and the order of dismissal following the overruling of the motion to set aside the nonsuit.

In substance, the petition alleged that the defendants negligently permitted the stairway steps to become worn, uneven, smooth, slick and slippery, and negligently permitted the stairway to be so "dimly and improperly lighted" that persons using the same could not, by the exercise of ordinary care, discover that the steps were worn, uneven, smooth, slick, slippery and dangerous.

On overruling the motion for a new trial and the motion to set aside the nonsuit, the trial judge stated that the verdict was for the right party and that the court erred in refusing to direct a verdict for both defendants at the close of all the evidence. We construe the statement to mean that the trial judge was of the opinion that a verdict should have been directed for both defendants and for that reason "the verdict was for the right party".

Plaintiff assigns error on certain instructions and assigns error on the refusal of certain testimony as evidence in the cause. Even so, said assignments are not for consideration if a verdict should have been directed for defendants.

The facts for consideration on demurrer follow: Defendant company owned and operated a retail store in Kansas City, Mo. On the east side of the storeroom a wide stairway extends upward and eastward to a landing ten feet wide and twenty-two feet long. From this landing two separate stairways extend upward and westward, one from the north side of the landing and the other from the south side of the landing. The stairways are of Tennessee and Alabama marble -- materials commonly used in public buildings. They had the usual "hone finished" steps, which are neither slick, polished nor slippery. It is a smooth and standard finish for marble steps. Appropriate hand rails are on each side of the stairways. The steps were worn by constant use. The heavy traffic is adjacent to the handrails, which caused that part of the step in question to be worn or "cupped out" five-eighths of an inch, as shown by actual measurement. Constant use tended to increase the smoothness of the steps.

Over the landing are three electric lights with frosted globes about twelve inches in diameter. They are about twenty-five feet from the landing floor. On the second floor the lights are over the counters. In the south wall of the building are large windows located near the landing.

At 11:30 a.m. on February 21, 1934, plaintiff and her daughter went to the store as prospective customers. After "shopping" on the first floor for ten minutes they ascended the stairway to the landing and proceeded westward up the stairway to the second floor. After looking about on said floor for fifteen minutes they proceeded on the south side of the south stairway to the landing. The daughter preceded the plaintiff down the stairway. Plaintiff's right foot slipped on the fourth step from the top, which caused her to fall. The daughter assisted her to a sitting position on the step.

Plaintiff testified that while...