Marquis v. Goldberg

• Decision Date: 15 January 1931
• Docket Number: 4828
• Citation: 34 S.W.2d 549
• Parties: MARQUIS v. GOLDBERG.
• Court: Missouri Court of Appeals

34 S.W.2d 549

MARQUIS v. GOLDBERG.

No. 4828

Court of Appeals of Missouri, Springfield

January 15, 1931

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

“ Not to be officially published.”

Action by Sophia A. Marquis against R. Goldberg, doing business as the Goldberg Chain Store. Judgment for plaintiff, and defendant appeals.

Affirmed.

Roy Coyne and S.W. Bates, both of Joplin, for appellant.

Harry Warren, of Ft. Scott, Kan., and Haywood Scott, of Joplin, for respondent.

OPINION

COX P. J.

Action for damages for personal injury resulting from a fall down a stairway in the storeroom of defendant. Plaintiff recovered and defendant appealed.

Defendant operated a general store in the city of Joplin, located on the west side of Main street fronting the east. This storeroom was about fifty feet wide. The entrance was at the middle of the front with show windows on either side. The front door was a double door setting even with the east inner wall of the store. On the day of the accident, the north door of this double door only was used. To the left of this entrance and adjoining the east inner wall of the store was an open stairway leading to the basement. According to plaintiff’s evidence, this stairway to the basement started three or four feet south of the entrance door, and according to defendant’s evidence the distance was six or seven feet. The inner side of the show windows was the east inner wall of the store and was composed of glass. On the south side of the entrance and abutting the stairway to the basement, this show window was boarded up for some distance so that these boards, according to plaintiff’s testimony, cast a shadow upon the steps of the stairway and darkened them to some extent. On the other side of the stairway goods were stacked which obstructed to some extent the light to the stairway from that side. Plaintiff’s testimony tends to show that these obstructions made the stairway darker than other portions of the room, though not to such an extent as to make it invisible to a person looking for it. Defendant had advertised a special sales day for February 9, 1929, and in response thereto quite a number of people went to this store on that day to purchase goods. Plaintiff and a companion by the name of Mrs. Hoots went together to this store on that day. The plaintiff had never been in the store before and knew nothing about its inside arrangement. Mrs. Hoots entered the door first and plaintiff followed closely behind her. When Mrs. Hoots entered the store, her attention was attracted to some house dresses that were located just west of the basement stairway, and she went angling across to them supposing the plaintiff to be following her. The day was cold. Plaintiff wore glasses and, according to her testimony, when she stepped inside the door where it was warm and had gone two or three steps following Mrs. Hoots, her glasses became clouded and she stopped for the purpose of taking them off and wiping them. Her own language in telling of this incident is as follows: "When we stepped in, Mrs. Hoots stepped this way to look at some house dresses and I went behind her— followed her. I took two or three steps, I can’t tell how many, until my glasses steamed and clouded. I had not seen the stairway. Did not know there was one there. I stopped to take off my glasses. Somebody coming in brushed against me in the door and I realized I was standing in the pass way. Well, I stepped to one side until I could get my glasses off and wipe them and I stepped down into that basement and fell."

On cross-examination she said: "I stopped inside the door way. Could not have seen the stairway on account of my glasses being clouded. When I came out I could see there was a stairway there. I could not say whether I would have seen it or not if my glasses had not been clouded. I was not looking that way when I went in. It was clear to me when I came out. *** I stepped over to be out of the way of the door to take my glasses off and clean them. If I stood still I could have cleaned my glasses if I had realized I was in the door. Somebody ran into me and I stepped aside. I don’t think I kept walking on. I stepped to one side and my right foot went off into the stairway and I fell. I don’t think I kept walking around. My glasses steamed and I stopped where ever I was with intention of wiping my glasses and stepped to one side."

Plaintiff’s companion, Mrs. Hoots, testified as follows: "When I stepped inside the door I went angling across to the southwest. I went across to the west side of the stairway to look at some house dresses. I did not pay any attention to Mrs. Marquis. I didn’t look back toward Mrs. Marquis until I got there and I looked back and she stepped in behind me and I turned to say something to her and just then I saw her going down the stairway. Stepped into the stairway. I reached out and tried to catch her but she was too far gone. The stairway was dark and there was so much merchandise around there it made it dark and the window being boarded up cast a shadow over it. The stairway is about three or four feet from the entrance door. There was no bar across the stairway or guard. No one gave me any warning. I didn’t hear any."

We think the foregoing a sufficient statement of the evidence most favorable to plaintiff.

Defendant’s evidence tended to show that the lights in the stairway were all on and the store and stairway were well lighted. That there was a sign at the stairway, but just where it does not clearly appear, which read, "Watch Your Step." Also that one party stood at or near the stairway to warn people to watch their steps as they went down the stairway to the basement. This was done because it was a cold day and snow on the ground, and snow and ice would stick to the shoes and, when inside the store, would melt and make the steps slippery. Two witnesses for defendant testified that the plaintiff did not step into the stairway and fall, but that she and her companion both started down the stairway, and that plaintiff stumbled on the steps and fell as she went down.

Appellant offered a demurrer to the evidence at the close of plaintiff’s case and again at the close of the whole case. Both of these were refused. This action of the court is assigned as error. The respondent contends that we cannot consider this question on this appeal because appellant has not abstracted all the evidence, as must be done in order to preserve that question here. Appellant contends he has abstracted all the evidence necessary to a determination of the questions insisted upon in this court, and states in his reply brief that he relies solely on the questions of...