McFarland v. Sears, Roebuck & Co.
| Decision Date | 03 March 1936 |
| Docket Number | No. 23462.,23462. |
| Citation | 91 S.W.2d 615 |
| Court | Missouri Court of Appeals |
| Parties | McFARLAND v. SEARS, ROEBUCK & CO. |
Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.
"Not to be published in State Reports."
Action by Sophia McFarland against Sears, Roebuck & Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Anderson, Gilbert & Wolfort, of St. Louis, for appellant.
Douglas H. Jones and J. R. Vettori, both of St. Louis, for respondent.
This is an action for damages for personal injuries alleged to have been suffered by plaintiff falling in a parking lot located and maintained in the rear of defendant's store. A verdict resulted in favor of plaintiff for the sum of $1,000. From the resulting judgment, the defendant appeals.
The defendant owns and operates a store in the city of St. Louis, at Grand and Winnebago streets. The store has an entrance on each of its four sides. The store faces Grand avenue and is bounded on the north by Winnebago street, on the east by an alley, and on the south by a private alley. The store building does not extend to the alley, and between the rear of the store and the alley there is a space of approximately 50 feet in width, and this space was used as a parking lot by defendant company, for use of its customers. There were two entrances to said parking lot, one from Grand avenue through defendant's private alley; the other through the alley south of defendant's property. This parking lot was known as the west parking lot. Across the alley from this west parking lot the defendant maintained another place for use by its customers in parking, referred to as the east parking lot. The entrance at the rear of the store leading to the west parking lot is referred to in the evidence as the rear or east entrance to defendant's building. To the north of the west parking lot, immediately in the rear of the store, was a building that extends to within 10 or 12 feet of the alley and is referred to in the evidence as a loading platform. At the extreme south end of the west parking lot was a tire shop. For a better understanding of the situs in quo, we have drawn and inserted as a part of this opinion a rough outline of the store and its surroundings.
Referring to the plat, we call attention to the 4" × 4" wooden curbing which was located in the parking lot 15 feet west of and running parallel with the alley. According to defendant's testimony, from the north end of this wooden curbing to the shipping platform there was an open space of 15 feet, and on the south end there was a like space of 20 feet between the wooden curbing and the tire shop, left open for automobile traffic lanes, and there was a 5-foot opening left in this wooden curbing almost directly east of the rear door to defendant's building, which opening, according to defendant's evidence, was a pedestrian passageway. Cars entering the alley from Winnebago street would enter the west parking lot and park their cars against the wooden curbing heading west from the alley. Cars coming in from the Grand avenue entrance through defendant's private alley would park headed east against this wooden curbing. It will be noted that like wooden curbings for parking cars appear along the south and west sides of defendant's building.
Plaintiff alleges in her petition, as amended, that Sears, Roebuck & Company operated a department store at 3708 South Grand boulevard, and that immediately adjacent to said store it maintained a parking lot for patrons; that at about 8 o'clock p. m., on January 30, 1932, she entered the premises of defendant after parking her automobile in the parking lot. She alleges that she attempted to enter the premises, and while attempting to do so she struck against and upon a wooden curb separating the store premises from the parking lot, causing her to fall and to sustain injuries, and alleges that defendant negligently maintained approaches from the parking lot to the store and allowed a wooden curb to remain in the approaches, and failed to properly light the approaches and to paint and illuminate the curb, or to mark or designate said curbing.
The defendant's amended answer consisted of a general denial and an allegation that whatever injuries, if any, plaintiff sustained on the occasion mentioned, were due to her own carelessness and negligence in that she failed to look where she was walking, and that she failed to use the open ways provided for the use of pedestrians, and, on the contrary, walked in between parked automobiles in the space provided for automobile parking and not for the ingress and egress of pedestrians into defendant's store.
The reply was conventional.
Appellant insists that its demurrer offered at the close of the evidence should have been sustained because the record contains no substantial evidence as to what caused plaintiff to fall, and that plaintiff, upon the record, was guilty of contributory negligence as a matter of law. We set out so much of the testimony as in our view is necessary for a proper consideration of this assignment of error.
Plaintiff herself testified that she had gone to Sears, Roebuck & Company at about 7 o'clock in the evening and bought a pair of shoes for her infant child; that upon her return to her home she found the shoes were not the proper size and that, together with her husband, she returned to defendant's store, riding in their automobile; that they drove down Winnebago street and entered the alley from the north, the alley being situated east of Sears, Roebuck & Company's premises, and parked their automobile on a parking lot of the defendant on the east side of the alley; that she then walked west from that parking lot to the alley and found that the defendant's parking lot west of the alley was packed with automobiles all along the alley, one immediately next to the other; that she thereupon walked north in the alley to see whether she could find an entranceway to reach the door to the rear or east entrance of defendant's place of business, but that she found the automobiles parked solidly the whole length of the parking lot; that thereupon she walked back southwardly in the alley until she came to the only open space between the line of parked automobiles, a space perhaps 2 to 2½ feet wide, through which opening she found people walking to the back entrance of defendant's building; that it was very dark; that "there was no space to get into but this one headway where I seen people heading to the store and I followed the people to this back door. * * *" Plaintiff testified that this opening between the automobiles was "a little past the south side," (about 2 to 2½ feet) of the back door entrance to defendant's property, which she was seeking to enter.
Plaintiff described what happened to her as she started to walk through the open space between the automobiles:
That when she came to, "I just saw a lot of people around me. * * * I was about six feet away from this curbing * * * sitting on the ground. * * * My shoe got caught in that curbing and I lost my shoe. * * * I went back and got my shoe; I said I had to find my shoe, and I put it on.
And plaintiff was on the west side of the curb.
After plaintiff had fallen, she was taken into the store and attended by a physician. In about an hour she left the store, accompanied by her husband, going out of the Winnebago street entrance and walked to the space between the automobiles on defendant's parking lot where plaintiff had fallen.
and its color was "just like the ground," and it "was dark" between the automobiles where she had entered and she could not see the curb at that point.
On cross-examination plaintiff testified that when she left their automobile in the east parking lot and walked into the alley, she had walked up to the north end of defendant's property, but that she did not walk down to the south end of the parking lot; that the "alley was dark."
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