McKeighan v. Kline's Inc.
| Decision Date | 12 November 1936 |
| Docket Number | No. 33319.,33319. |
| Citation | 98 S.W.2d 555 |
| Parties | CARRIE LOU McKEIGHAN v. KLINE'S INCORPORATED, a Corporation, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.
REVERSED.
Henry S. Conrad, L.E. Durham and Hale Houts for appellant.
The court erred in refusing appellant's requested peremptory instruction directing a verdict for appellant at the close of all the evidence. The grounds of recovery submitted by plaintiff, the failure of defendant to remove or warn plaintiff of the presence of an oily or greasy substance, were without support in the evidence. There was no evidence, actual or constructive, of knowledge by defendant of the presence of oily or greasy substance in time for the defendant, by ordinary care, to have removed or warned plaintiff thereof. It appeared from plaintiff's own evidence that the plaintiff had as full knowledge of the condition of the runway as the defendant had or by ordinary care could have had. Kinard v. Westerman, 279 Mo. 688; Phillips v. Ry. Co., 226 S.W. 865; Bode v. Wells, 322 Mo. 396; Bird v. Ry., 78 S.W. (2d) 391; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 984; Meyers v. Strauss, 264 S.W. 801; Main v. Lehman, 294 Mo. 592; Peck v. Yale Amusement Co., 195 S.W. 1034; Vogt v. Wurmb, 318 Mo. 476; Burnison v. Souders, 225 Mo. App. 1164; Berberet v. Electric Park Amusement Co., 319 Mo. 283; Williams v. K.C. Term. Ry. Co., 288 Mo. 20; Broughton v. Kresge Co., 26 S.W. (2d) 840; Varner v. Kroger Gro. Co., 75 S.W. (2d) 587; Cartoos v. Woolworth Co., 160 N.E. 109; O'Leary v. Smith, 150 N.E. 878; Great A. & P. Co. v. Logan, 33 S.W. (2d) 470; Cash v. Sonka-Galamba, 322 Mo. 356; Lappin v. St. L. Natl. League Baseball Club, 33 S.W. (2d) 1027; Clay v. Ry. Co., 5 S.W. (2d) 411.
Trusty & Pugh, S.L. Trusty and Guy W. Green, Jr., for respondent.
(1) The demurrer to the evidence was properly overruled because the evidence showed the defendant had failed in two respects: (a) Defendant, for its own benefit, maintained the incline in connection with a greasy and oily condition in the alley, which it knew would be tracked onto said incline, and likely make it dangerous at any moment to persons walking thereon, and knowing this failed to exercise due diligence to keep it reasonably safe, or to warn plaintiff, and on the contrary invited her to use said incline; and (b) By due diligence, "the circumstances considered," defendant could have known of the condition that caused plaintiff's injury in time to have warned her or to have removed it, or in time by ordinary care to have removed it or warned her, and the evidence supports all these elements, and the plaintiff's instruction in the conjunctive embodied all these elements, as did defendant's No. 6. Robinson v. Woolworth, 261 Pac. 253; Tack v. Ruffo, 161 N.E. 587; Stith v. Newberry, 79 S.W. (2d) 447; Milzark v. Natl. Biscuit Co., 259 S.W. 832; Smith v. K.C. Pub. Serv. Co., 56 S.W. (2d) 838; Winkler v. Terminal Ry. Co., 227 S.W. 625; Wendt v. Zittlosen, 229 S.W. 1107; Morton v. Tel. Co., 217 S.W. 831; Henderson v. Wilson Co., 197 S.W. 177; Bujalo v. St. L. Basket Co., 227 S.W. 844. (2) There is substantial evidence to support the strict rule urged by appellant, that defendant must have had actual or constructive knowledge of the particular grease on which she stepped, submitted by the latter part of paragraph 3 of plaintiff's Instruction 1. (a) Superintendent Packwood passed through the door and over incline shortly ahead of plaintiff. Van Verth v. Loose-Wiles, 136 S.W. 724; Borowski v. Loose-Wiles, 229 S.W. 424. (b) Evidence showed continued custom, practice, or situation, of oily and greasy substances in alley and on incline. Randolph v. A. & P., 2 Fed. Supp. 462; Koonse v. Standard Steel Works Co., 300 S.W. 531; Lock v. C.B. & Q., 219 S.W. 919; Winkler v. Terminal Ry., 227 S.W. 625; Lowther v. Frisco, 261 S.W. 702. (c) Evidence showed that quantity or amount of substance on floor was necessarily considerable to cause plaintiff to slip as she did. Vortriede v. St. Louis Pub. Serv. Co., 58 S.W. (2d) 492. (d) Evidence showed sales ladies were directly in front of incline watching it, and defendant had a janitor charged by defendant with a continuing duty because of what it knew. Varner v. Kroeger, 75 S.W. (2d) 585.
Action for damages for injuries sustained by the plaintiff in falling on the floor of an entrance to one of the defendant's stores in Kansas City, Missouri. From a judgment for plaintiff for $10,000 the defendant appealed.
Defendant occupied two store buildings situated in the interior of the block bounded on the west by Main, on the east by Walnut, on the south by Twelfth, and on the north by Eleventh Street. One building fronted on Walnut and the other on Main, opposite each other and separated by a paved public alley running north and south between Twelfth and Eleventh streets. For the use and convenience of persons desiring to pass from one building to the other, on the ground floor, defendant provided and maintained in the rear end of each building a set of standard swinging doors, with glass in the top panel, affording an opening from a vestibule into the alley. Another set of doors opened from the vestibule into the store proper. The vestibule floor of the east or Walnut Street building sloped downward from the alley level to the level of the floor of the store (degree of incline not shown) and was paved with standard non-slip tile which contained carborundum as an ingredient. Upon this floor in this building the plaintiff fell.
On March 31, 1931, in the noon hour, plaintiff proceeded from the Baltimore Hotel, where she was employed, to defendant's Main Street store to make a purchase. Shortly she passed through that store, crossed the alley to and entered the vestibule or the alley entrance of the Walnut Street store, and slipped and fell upon the floor.
The petition contained several specifications of negligence. The case was submitted on but one of them, the theory of which may be stated thus:
(1) The defendant, having maintained the vestibule floor in connection with said passway with knowledge of the conditions described hereinafter and of the likelihood of danger arising therefrom to customers passing from one of the buildings to the other by the means provided, is to be charged with constructive knowledge of the conditions existing and of the danger encountered by the plaintiff at the time and place in question, and defendant's failure to remove it or warn of it was culpable negligence. (2) The defendant had prior knowledge of the conditions and danger which plaintiff encountered, in time by the exercise of ordinary care to have remedied or warned of the danger before the occurrence of the injury, and hence was guilty of negligence in failing to exercise such care.
On this theory alone the case was submitted to the jury, after the court's refusal to give an instruction offered by the defendant in the nature of a demurrer to the evidence as a whole. Such refusal is the principal error assigned by defendant (appellant), and will be first considered. We take the facts from defendant's brief and addenda furnished by plaintiff's brief.
Plaintiff had evidence tending to show the alley was much used by delivery trucks in serving, and in parking at the rear of, various stores on either side, but not ordinarily parking within the white lines marking the passage used by persons in crossing from one of defendant's stores to the other. Oil and grease was dropped in the alley by motor cars in such use of it and tracked by their wheels. The two buildings were connected in the upper floors by a structure directly above the surface passway, protecting it from rain to some extent. In that condition of the surface rain would cause oily, greasy and dirty water to flow down the middle or lower portion of the alley and such substance was at times tracked into the vestibule in question from the surface of the alley — particularly in wet weather — by customers and persons using the passway. A great number of persons used it.
Plaintiff testified that as she crossed the alley she observed its condition; the weather was damp, misty, rainy, and snowing some through the day; there were puddles standing in the alley, and a blotch of oil that she avoided; that as she reached the doors of the vestibule no one was ahead of her, except a man who preceded her at a distance the width of the alley; that she pushed and entered by the south or right-hand door; that she took the first step in with her left foot and that when she took the next step, with her right foot, she and that she went down on the floor in an angling position.
Plaintiff's witness, Mrs. Rundus, testified that she had come from the Main Street store through the alley to the Walnut Street store and was directly behind the plaintiff when she was injured, and that the alley was dirty, oily and greasy; that plaintiff took hold of the door and she thought took one step and fell; that where she fell, "there was sort of a line made where your heel slips, you know," it was "not hardly a foot I wouldn't say."
Plaintiff said that as she opened the alley door and started into the vestibule she looked at the floor and that it had "an appearance of a dirty, muddy looking cast on the tile, dirty and dark and black looking tracks." Mrs. Rundus testified that after plaintiff fell and was lying on the floor she noticed that the floor was wet. The driver of the ambulance by which plaintiff left the building testified on plaintiff's behalf that when plaintiff was put in the ambulance he noticed some dirt or something "slimy like grease" on plaintiff's dress at her hip, and plaintiff testified that there was grease on the...
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