Mastin v. Emery, Bird, Thayer Dry Goods Co.

• Citation: 140 S.W.2d 720,236 Mo.App. 487
• Parties: AILEEN M. MASTIN, RESPONDENT, v. EMERY, BIRD, THAYER DRY GOODS COMPANY, APPELLANT
• Decision Date: 29 April 1940
• Court: Court of Appeals of Kansas

140 S.W.2d 720

236 Mo.App. 487

AILEEN M. MASTIN, RESPONDENT, v. EMERY, BIRD, THAYER DRY GOODS COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

April 29, 1940

Appeal from Circuit Court of Jackson County.--Hon. John F. Cook Judge.

AFFIRMED.

Judgment affirmed.

Ryland Stinson, Mag & Thomson, Wright Conrad and Dick H. Woods for appellant.

(1) The court erred in refusing defendant's peremptory instruction directing a verdict for defendant at the close of all the evidence. (a) Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; McKeighan v. Klines Inc., 339 Mo. 523, 98 S.W.2d 555; State ex rel. v. Shain, 342 Mo. 588, 116 S.W.2d 99; Taylor v. Kansas City Terminal Ry. Co. (Mo. App.), 240 S.W. 512; Varner v. Kroger Grocery & Baking Co. (Mo. App.), 75 S.W.2d 585; Stewart v. George B. Peck Co. (Mo. App.), 135 S.W.2d 405; Harrison v. St. Louis San Francisco Ry. Co., 339 Mo. 821, 99 S.W.2d 841. (b) To make a submissible case, there must be substantial evidence upon which to charge the defendant with knowledge or constructive knowledge of the defective condition. Kramer v. Grand National Bank of St. Louis, 336 Mo. 1022, 81 S.W.2d 961; Bushman v. Barlow, 316 Mo. 916, 292 S.W. 1039; Van Raalte v. Graff, 299 Mo. 513, 253 S.W. 220; Williams v. Kansas City Southern Ry. Co., 257 Mo. 87, 165 S.W. 788. (2) The court erred in failing to give defendant's requested instruction "C." See Authorities under Point 1, (a) and (b), supra. The court erred in giving plaintiff's instruction "1" for the reason that it assumed plaintiff was exercising ordinary care for her own safety at the time she tripped. Mahaney v. Auto Transit Co., 329 Mo. 793, 46 S.W.2d 817; State ex rel. Hartford Life Ins. Co. v. Trimble, 298 Mo. 418, 250 S.W. 393; Klein v. St. Louis Transit Co., 117 Mo.App. 691, 93 S.W. 281; Van Natta v. Railway Co., 133 Mo. 13, 34 S.W. 505. (a) Plaintiff's Instruction No. 4 does not cure the error committed in giving plaintiff's Instruction No. 1. Weddle v. Tarkio Electric & Water Co. (Mo. App.), 230 S.W. 386. The verdict was excessive. Stoetzele v. Swearingen, 90 Mo.App. 588; Ulmer v. Farnham (Mo. App.), 28 S.W.2d 113; Rooker v. Deering S.W. Ry. Co., 215 Mo.App. 481, 247 S.W. 1016; Adams v. Street Railway Co., 174 Mo.App. 5, 60 S.W. 38.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.

(1) The court properly refused defendant's peremptory instruction directing a verdict for the defendant, requested at the close of all the evidence. Allen v. Chicago, R. I. & P. Ry. Co., 227 Mo.App. 468, 54 S.W.2d 787, 793; State v. Jaynes, 318 Mo. 529, 1 S.W.2d 137, 138; Doyle v. St. Louis Merchants' Bridge Terminal Ry. Co., 326 Mo. 425, 31 S.W.2d 1010, 1012; Stewart v. George B. Peck Co., 135 S.W.2d 405, 406, 408, 410; Finn v. Terminal R. Ass'n of St. Louis, 97 S.W.2d 890, 891. (b) There is substantial evidence as to the physical condition of the step sufficient to charge the defendant with knowledge of such defective condition. State v. Gregory, 339 Mo. 133, 96 S.W.2d 47, 52; Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311, 317; Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509, 515; State ex rel. City of St. Charles v. Haid, 325 Mo. 107, 28 S.W.2d 97, 102; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W.2d 960, 970. The court committed no error in giving plaintiff's Instruction 1. Grosvener v. New York Central R. Co., 123 S.W.2d 173, 179; Reith v. Tober, 8 S.W.2d 607, 611; Pogue v. Rosegrant, 98 S.W.2d 528, 530; Miller v. Collins, 328 Mo. 313, 40 S.W.2d 1062, 1067; Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104, 112. Any possible error in plaintiff's Instruction No. 1 is cured by plaintiff's Instruction No. 4. Green v. Kansas City, 107 S.W.2d 104, 105. The verdict was not excessive. Whittington v. Westport Hotel Operating Co., 326 Mo. 1117, 33 S.W.2d 963, 969; Detchemendy v. Wells, 253 S.W. 150, 154; Murphy v. Winter Garden & Ice Co., 280 S.W. 444, 447; Gately v. St. Louis-San Francisco Ry. Co., 332 Mo. 1, 56 S.W.2d 54.

OPINION

SHAIN, P. J.

In this action plaintiff seeks damages from defendant for alleged injuries received in defendant's place of business by reason of a fall upon a stairway. The defendant owns and operates a large department store in Kansas City, Missouri.

Plaintiff alleges that her fall and injuries were occasioned and were:

". . . due to the negligence and a carelessness of the defendant, acting by and through its duly authorized agents, servants, and employees, in suffering and permitting a metal strip on the outside edge of the tread of said tenth step to become loose, insecure in its fastenings, and ill-fitting in that it protruded above the surface of the tread of said step, plaintiff was caused to trip and fall, and to be thrown down, upon and against said flight of steps to the mezzanine floor below and hard surfaces thereof, as a direct and proximate result of which plaintiff received severe, permanent and progressive personal injuries."

The defendant joined issue by a general denial and states as follows:

"Further answering, defendant states that the carelessness and negligence of plaintiff directly contributed to cause what injury she may have sustained at the time and place in her petition alleged; that plaintiff was careless and negligent in this, to-wit, that she failed to exercise ordinary care to look out for her own safety, and failed to look at and observe the condition of the steps over which she was walking. Plaintiff was careless and negligent in failing to exercise ordinary care for her own safety in the manner in which she walked over said steps, and that her own carelessness and negligence in the manner she walked on said steps directly contributed to cause her injury; that the foregoing carelessness and negligent acts and omissions of plaintiff directly caused and contributed to cause and bring about any injury she may have sustained."

Plaintiff in reply makes general denial of all allegations in defendant's answer.

Trial was by jury and jury verdict was for plaintiff and damages were assessed at $ 3000. Judgment was had and entered in accordance with verdict and defendant duly appealed.

We will continue to refer to respondent as plaintiff and to appellant as defendant.

At the close of all of the evidence, the defendant asked for a directed verdict in its behalf and same was refused. Defendant's first assignment charges error in refusal of court to direct a verdict for defendant.

It appears that the plaintiff and her daughter were shopping in defendant's store on November 3, 1938, and after being on the third floor decided to go down to the rest room which was a flight of steps down from the third floor to the mezzanine floor, where the rest room was located.

In passing upon defendant's claim that directed verdict should have been given, we search the record to ascertain as to whether or not there is shown any substantial evidence which justifies submission of issue to a jury.

In the direct examination, the record shows the following questions and answers:

" . . You were going to walk down a flight of steps, is that correct? A. That is right.

"Q. Did you get to that flight of steps? A. Yes, sir, we did.

"Q. That flight of steps from the third floor to the mezzanine floor extended what direction, as a person would go down to descend the steps, you would be traveling what direction as you would go down the steps? A. South.

"Q. You would go south? A. Yes.

"Q. Do you have any judgment, Mrs. Mastin, as to the width of the flight of steps extending from the third floor to the mezzanine floor and extending in a southerly direction? A. Why no, I haven't. It is a very wide flight of steps.

"Q. Yes, and what side of the steps were you walking on as you traveled down the steps toward the mezzanine floor? A. Well, I was walking on the right side.

"Q. And how far would you say you were walking on the extreme right side of the steps? A. Oh, possibly a foot or a foot and a half.

"Q. Now, where was Eleanor walking with reference to where you were walking? A. Well, she was oh, about a half a step behind me and to my left.

"Q. To your left? A. Yes.

"Q. Were both of you ladies on the west one-half or the right one-half of that flight of steps? A. Yes, we were.

"Q. Yes. As you traveled down the flight of steps did you observe where you were going? A. Yes.

"Q. You looked ahead of you, did you? A. Yes, I did.

"Q. Did you see anything that particularly attracted your attention as you walked down the steps? A. No.

"Q. Did you continue to walk down the steps? A. Yes, I did, part way.

"Q. And how far did you get down before anything unusual or out of the ordinary occurred? A. Why, I got about half-way down the stairs.

"Q. Yes. You may tell the Court and jury in your own language what occurred at that time, Mrs. Mastin. A. Well, I got about half-way down the stairs and I had put my left foot on the step below and as I put my right foot out to take a step I caught my heel and it threw me and I just turned over and over and went down the steps.

"Q. How many steps did you say there is from the point where your heel caught until the surface of the mezzanine floor? A. Well, I would say about ten steps.

"Q. About ten steps? A. Yes, sir.

"Q. Mrs. Mastin, at the time this thing occurred did you have any packages or anything in your arms or under your arms or in your hands? A. Yes, I had my pocketbook and an umbrella.

"Q. Where was your pocketbook being held? In what fashion was it being held? A. Oh, I held it under my arm.

"Q. Where was your umbrella being held? A. In my hand.

"Q. In the same hand? A. Yes.

"Q. As the arm holding the pocketbook? A. They were both in my left hand.

"Q. Mrs. Mastin, when this right heel of your right shoe...