Long v. F.W. Woolworth and Co.
| Decision Date | 07 July 1927 |
| Docket Number | No. 18837.,18837. |
| Parties | BESSIE LONG, RESPONDENT, v. F.W. WOOLWORTH AND COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County. — Hon. Marion D. Waltner, Judge.
REVERSED AND REMANDED.
Burrus & Burrus and Charles V. Garnett for respondent.
Mosman, Rogers, Bell & Buzard for appellant.
This appeal comes to us from the Circuit Court of Jackson County at Independence.
On April 20, 1935, the plaintiff filed her petition in such court for recovery of damages in the sum of $3000 for injuries alleged to have been received by her in falling on the floor of the defendant's retail merchandise storeroom located on the north side of the public square at Independence, Missouri, while in said storeroom and while walking on the floor thereof, through the defendant's negligence in maintaining such floor in a dangerous and unsafe condition.
The petition charges the operation by the defendant of a retail merchandise store, commonly called a five and ten cent store, on the north side of the public square in the city of Independence, Missouri, at all of the times mentioned therein. It charges that the defendant caused and permitted the floor of said storeroom to be and remain in a dangerous condition, which condition was well known to its officers and employees and had become so known to them for a period of time prior to the date the plaintiff was injured sufficient within which, by the exercise of ordinarily reasonable care and prudence on their part, to have remedied and repaired the same; that the condition of said floor was so rendered dangerous by the maintenance of a trapdoor therein at or near the front entrances to said storeroom where customers were permitted to walk, with a round hole or depression therein, about two and one-half inches in diameter, which door was of uneven surface with and was above the level of other parts of the floor immediately adjoining it; that, while in said store on August 28, 1934, for the purpose of making purchases therein and while walking on said floor and while in the exercise of due and proper care for her own safety, she tripped on said door and the hole therein and was caused thereby to fall on the floor and to suffer severe and permanent injuries to her person; that, as a result of said fall and of the negligence of the defendant in maintaining said floor in such dangerous condition, she suffered cuts, bruises, contusions, and lacerations to her body and legs; that the muscles, ligaments, tendons, blood vessels, and nerves of her whole body were bruised, mashed, cut, severed, strained, and lacerated and she was made sick, stiff, sore, and lame thereby; that her condition is lasting and permanent; that she is now sick, stiff, sore, and lame by reason thereof and will continue so to be; that her back was wrenched and twisted and the bones thereof caused to be drawn out of place; that the blood vessels, ligaments, nerves, and muscles thereto attached were strained, torn, cut, bruised, and her back and spine made stiff, sore, and lame; that the sacro-iliac joint was sprained and the blood vessels, muscles, ligaments, and nerves thereof and attachments thereto were strained, torn, cut and bruised and she was made sick, stiff, sore, and lame; that her urinary and genital organs were displaced and the functions thereof impaired: that she has become anaemic by reason of all of said injuries by reason of said fall; that she suffered a severe and permanent shock to her central nervous system and is still so suffering and will continue so to suffer in the future; that all of the plaintiff's conditions and injuries are lasting and permanent.
The answer is a general denial.
The evidence shows, as alleged in the petition, that on August 28, 1934, at the time of the plaintiff's injuries, the defendant maintained and operated a five and ten cent retail store on the north side of the square in Independence, Missouri; that the building in which said store was operated fronted on the square and that it had three entrances through large, double doors, one on the west side as it faced south, one on the east side, and one in the center; that in the floor was a trapdoor which could be raised and closed again; that there was a hole in this trapdoor which extended across into the floor about three-quarters of an inch across each way and about one-half of this hole was in the door and one-half in the floor; that, in passing into said store building from the street through the west entrance, there was a soda fountain and lunch counter along the west wall that, in front of this fountain and counter, were stools and immediately east of the row of stools was another aisle which extended across the building from the south to the north or rear end thereof; that, immediately beyond this aisle to the east, was a counter upon which was kept toilet and other articles for sale; that east of this counter was another aisle, the middle aisle of the store, running north and south across it and east of which was a jewelry counter; that, immediately east of the west doorway and along the south wall was a steam radiator, which extended out into the aisle; that the trapdoor in question was at the east end of this radiator; that, upon the morning of August 28, 1934, the plaintiff entered the store through the west entrance with her daughter. Madeline Long, and turned to the right or east in the aisle between the radiator and the notion counter; and that her daughter was immediately in front of her. There is evidence tending to show that, while walking behind her daughter, the plaintiff caught the heel of her shoe in a hole in the floor and stumbled until she fell; that her heel was caught; that it was pulled loose from the sole of her shoe and the cap thereof was left hanging; that she was severely and seriously injured and that her injuries are permanent; that, when she stumbled, she was thrown and the back of her neck was jerked and she got blind and sick and started to sit down when she fell over and hit her left elbow and whirled around; that she was helped by her daughter and a young man in the store at the time to a chair against the wall at the end of the radiator; that she was in the store about fifteen or twenty minutes after she fell and until her son Thad, with the help of another young man, put her in an automobile and took her home; that she was sick at the stomach, was vomiting, had a terrible headache, and was almost blind; that she kept vomiting until she vomited blood; that a chiropractor was immediately called, who gave her treatment; that she was unable to take food or nourishment; the night of her injury and was still sick the next day and in bed all day on the day next following; that she continued under the treatment of the chiropractor until Saturday, when she went also to Dr. Stanley Green; that her left hip and side struck the floor when she fell; that there were bruised marks on her left knee and left elbow; that, prior to her injury, she had never had any disturbance in her menstruation periods; that, after her injury, she had a premature period about five days before the regular time; that she menstruated more than usual; that such trouble with her menstruation has been getting worse all the time; that she menstruates oftener and longer; that she has pains in her back and down through her sides. There is evidence that the heel of the shoe which the plaintiff was wearing at the time she was injured was approximately two and one-half inches high; that the width of the cap across the heel was not quite an inch; and that, at the time of her injury, she was about thirty-nine years of age. There is evidence by Dr. Green that she had at the time of the trial become anaemic and had anaemia.
The trial was before the court with a jury. At the conclusion of the plaintiff's evidence, the defendant requested an instruction in the nature of a demurrer directing a verdict in its favor, which was denied by the court. Again at the close of the whole evidence, the defendant renewed its request for such instruction, which was again denied. The jury returned a verdict for the plaintiff in the sum of $3000, upon which verdict a judgment was rendered by the court in such sum for the plaintiff. From such judgment so rendered, after unsuccessful motions for a new trial and in arrest of judgment, the defendant prosecutes this appeal.
OPINION.The defendant assigns error upon the action of the trial court in refusing to sustain its requested instructions in the nature of demurrers offered at the close of the plaintiff's evidence and at the close of all of the evidence; in giving the plaintiff's Instruction No. 1; in admitting and excluding evidence. It also complains that the verdict of the jury is excessive and therefore erroneous.
It contends that the proof that the plaintiff caught her heel in the hole in question and was thrown thereby to the floor and injured as complained of rests solely upon her statement to such effect and that such statement was a mere conclusion and is without any probative force; that her testimony is that she did not know until two weeks after the accident that she had stepped in any hole; that she did not see any hole in the floor before she fell or immediately after she fell and never saw one until two weeks after she fell; that therefore her statement that her heel was caught in the hole was a mere conclusion; and that such instructions should have been given.
The record does not show that the plaintiff ever at any time said in her testimony that she did not know until two weeks after the accident that she had stepped into a hole. All that she ever said was that she did not see any hole in the floor at the time she fell or prior thereto or...
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