Main v. Lehman

• Decision Date: 16 June 1922
• Citation: 243 S.W. 91,294 Mo. 579
• Parties: ISABELLA MAIN v. MAURICE H. LEHMAN, Appellant
• Court: Missouri Supreme Court

243 S.W. 91

294 Mo. 579

ISABELLA MAIN v. MAURICE H. LEHMAN, Appellant

Supreme Court of Missouri, First Division

June 16, 1922

Appeal from Buchanan Circuit Court. -- Hon. Lawrence A. Vories Judge.

Reversed.

O. C Mosman and Vinton Pike for appellant.

No reasonable person would have anticipated that anyone observing and knowing the situation as plaintiff did, and using ordinary care, would meet with an accident in entering or leaving the toilet. Shaw v. Goldman, 116 Mo.App 332-8; 21 Am. & Eng. Ency. Law, 471; O'Donnell v. Patton, 117 Mo. 122; Brewing Assn. v. Talbot, 141 Mo. 674; Benton v. St. Louis, 248 Mo. 98; State ex rel. v. Ellison, 271 Mo. 463; White v. Berkson, 187 P. 670; Carleton v. Iron Co., 99 Mass. 216; Parker v. Pub. Co., 69 Me. 179; Hordes v. Kessner, 159 N.Y.S. 891; Douglass v. Shepherd, 217 Mass. 127; Larken v. O'Neill, 119 N.Y. 221; Jennings v. Tompkins, 180 Mass. 302; Corbett v. Spanos, 173 P. 769; Greenfield v. Miller, 180 N.W. 834. When plaintiff saw the arrangement and condition of the toilet she saw and knew that there would be less light in the toilet after she pulled the door to after her. She knew she "would have to step down" from the platform she saw when she entered and upon which she stepped. By pushing open the door the light would have returned and showed her where to step. Ordinary care required this; but if she would step down in the darkness she should have taken care to find the edge of the step. Parker v. Pub. Co., 69 Me. 179; Clark v. Railroad, 127 Mo. 213; Hogan v. Railway, 150 Mo. 55; Zumwalt v. Railroad, 175 Mo. 313; Doerr v. Brewing Assn., 176 Mo. 556; Wharton on Neg. (2 Ed.) sec. 833; Sesler v. Company, 41 S.E. 218; Jones v. Sugar Co., 14 N.Y.S. 57. On the contrary, contradicting her own senses, she thought the step was farther out and carelessly took the step on that assumption. Defendant did not create a situation calculated to mislead her. He provided sufficient light to enable anyone to see the platform and its location. She admits this. She admits also that she had in mind she would have to step down as she left the toliet, but says she could not see, because she had pulled the door shut and darkened the place. But the darkness either was not so great as to prevent her from seeing if she had looked, or was great enough to require her to use care in stepping instead of acting upon the thought that the step was where she knew it was not. It did not seem or appear to be "further out;" she thought it was further out. Hacker v. Railway, 110 Mo.App. 165; Fowler v. Randall, 99 Mo.App. 414; Brugher v. Buchtenkirch, 167 N.Y. 153; Piper v. Railway, 156 N.Y. 224; Sanderson v. Railway, 192 S.W. 869; Murphey v. Cohen, 223 Mass. 54; Redley v. Nat. Casket Co., 161 N.Y.S. 444; Mochiea v. Hayden, 157 N.Y.S. 233; Brudie v. Renault, 122 N.Y.S. 963; Speck v. Railway, 122 N.W. 497; Bedell v. Berkey, 43 N.W. 308; Massey v. Seller, 77 P. 397; Patterson v. Hemenway, 148 Mass. 94; Badger v. Gresham, 35 S.E. 677. The rule upon which plaintiff relies, which has been often quoted and applied in the courts of this State, is expressed thus in Carleton v. Iron & Steel Co., 99 Mass. 216; O'Donnell v. Patton, 117 Mo. 19. Defendant had no reason to anticipate plaintiff was not a reasonably prudent person, and would not take care to avoid injury where no one was injured before. State ex rel. v. Ellison, 271 Mo. 473. The premises were as well known to plaintiff as to defendant. No notice was required.

Mytton & Parkinson for respondent.

(1) When the owner or occupant of premises invites persons to use the same in connection with his own benefit, pleasure or convenience, then that person is no longer a bare licensee, but becomes an invitee, and the duty to take ordinary care to prevent his injury is at once raised, and for the breach of that duty an action lies. The invitation may be implied by dedication, or it may arise from known customary use, or from any state of facts upon which it naturally and reasonably arises. Kean v. Schoening, 103 Mo.App. 77; Jacobson v. Simons, 104 N.E. 490; Glascer v. Rothschild, 221 Mo. 180; McCullen v. Fishell Bros. Co., 198 Mo.App. 130; O'Donnell v. Patton, 117 Mo. 13; Applegate v. Railroad, 252 Mo. 173; Moore v. Korte, 77 Mo.App. 500; Hollis v. Merchants' Assn., 205 Mo. 508; Oakley v. Richards, 275 Mo. 276; Reynolds v. John Broad Chemical Co., 192 Ill.App. 157. (2) Every reasonable person maintaining a toilet would have anticipated that a toilet constructed with the platform not extending out to the door of the toilet room when closed, and with the door extending within two, three or four inches of the floor would be dark; and that such construction combined with darkness would render it likely that persons would be injured in leaving the toilet room. A close observer entering the toilet for the first time would not have comprehended that the platform did not extend out to the line of the door when closed, and would not have observed on entering the closet with the door open that it extended to within two, three or four inches of the floor, and below the elevation of the platform within the closet, and could not and would not have observed or anticipated the extent of the darkness within the toilet room when the door would be closed; and even observing that there was a platform within the closet, would not comprehend the danger to be encountered in leaving the closet, by reason of its construction, and the darkness. Hanley v. Butler, 167 N.Y. App. 329, 152 N.Y.S. 39; Oakley v. Richards, 275 Mo. 266; Aiken v. Sidney Steel Scraper Co., 197 Mo.App. 673; Bloomer v. Snellenburg, 225 Pa. 25; Hommell v. Badger State Inv. Co., 166 Wis. 235.

SMALL, C. Ragland, C., concurs; Brown, C., no sitting. Graves, James T. Blair and Elder, JJ., concur.

OPINION

SMALL, C. --

Suit for personal injuries from falling over step in defendant's store by plaintiff who was shopping therein.

Plaintiff herself testified: Was hurt November 18, 1919. Went in store to buy goods about nine a. m. Asked saleslady on second floor where customers' toilet was. She said on third floor, told me how to get there; went up in elevator. Toilet was in room in extreme northwest corner of third floor. Toilet partitioned off; window in west end of room outside of toilet. Toilet she entered was immediately north of this window next to the west wall. Seat or stool was on platform, six inches higher than floor. Cannot tell how far edge of platform was from door, think about two feet. Question by plaintiff's counsel: "If this is a foot rule would that be possibly about a foot? A. Yes, sir." The door into the toilet did not reach the floor, but went below the top of the platform about three inches. When toilet door was closed could not tell how far out edge of platform extended. There was no artificial light in the toilet. When I went in I noticed there was a step there; I thought it came out as far as the door. As I went to leave toilet I went to step out and as I stepped I set my foot to go out and I fell with all my force on this hand. I put my foot out, to step out, to step down. The closet door was closed. I just rose up, just stepped and put my hand out as I stepped and as I stepped I fell forward onto the floor and threw all my weight on this hand. I stepped off from the step, I thought it extended farther out, I stepped over it and it threw me down. I looked as I stepped, but it was so dark I could not tell. I thought the platform went as far as the door. It was so dark at my feet I could not tell. Cross-examination: Had never been in this toilet before. The window is close to the toilet because the toilet door swings back against the window and covers the window. No, did not cover quite all, I suppose. Think platform lacked about two feet of extending to the door; could not see any light on the floor under the door. It was very dark. As I went to leave I stepped and put my hand out at the same time. Door was not fastened; it had a string to it. I held the door shut by holding onto the string. When I let go of string I started to push door. Door did not swing open of its own motion when I let go of string. I just let go and pushed and stepped at same time. I noticed the step there as I went in and closed the door. Door was not closed when I came into the room. As I came in I could see this step. In toilet about a minute and a half. Did not stand there looking down to see how far the step extended. When I got ready to leave I simply took this step and pushed the door open at the same time. I saw the outline where the step was before I opened the door, but it was so dark I could not tell how far it went out, I supposed it went as far as the door. My neighbor, Mrs. Means, was in the next toilet to me. She went to her mother's beyond Kansas City last Sunday. We had been shopping together. There was a board partition between me and Mrs. Means. Window sill was about two feet above the floor. Cannot tell how much higher top of window was than top of door. I noticed light above. As I stood there I saw the door. I could see, that was above me and it was light. Had something like drab or gray paint on it, could not positively say. I saw string on door as I went in. As I sat on toilet my feet rested on space of about eighteen inches on platform. Could not tell exactly. I could not see under the door. I looked and saw darkness. "Q. You did that while sitting there? A. The door was close up against it and it was so dark you couldn't tell." You can see the step there. While the door was open and I started in I could see plainly enough. I didn't simply forget all about this step when I came out. I thought it extended farther out. I knew I would have to take one step down, but I thought it was out farther than it was.

Miss Lilliam Thomas...