Mick v. John R. Thompson Co.

• Decision Date: 31 December 1934
• Docket Number: No. 22754.,22754.
• Citation: 77 S.W.2d 470
• Parties: MICK v. JOHN R. THOMPSON CO.
• Court: Missouri Court of Appeals

77 S.W.2d 470

MICK v. JOHN R. THOMPSON CO.

No. 22754.

St. Louis Court of Appeals. Missouri.

December 31, 1934.

As Modified on Denial of Rehearing January 16, 1935.

Appeal from St. Louis Circuit Court, Clyde C. Beck, Judge.

Action by Anna Mick against the John R. Thompson Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Green, Henry & Remmers, of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This is an action instituted by plaintiff in the circuit court of the city of St. Louis to recover damages for personal injuries resulting from a fall in one of defendant's restaurants located at 3608 Olive street in the city of St. Louis, Mo.

The following are the substantial averments contained in the petition:

That defendant corporation was the owner and operator of a restaurant located at 3608 Olive street in the city of St. Louis, Mo., including the scales and all things located therein; that plaintiff was injured in said restaurant on or about July 20, 1931; that at the time plaintiff sustained her injuries the floor of the restaurant was not reasonably safe for persons to use on account of the scales being on the floor in the passageway for the use of customers, and obstructing the same, and had been for some time prior to the date of her injury; that defendant knew, or by the exercise of ordinary care would have known, that the floor of said restaurant was not reasonably safe and of the danger of injury to plaintiff therefrom before plaintiff was injured in time thereafter to have remedied said unsafe condition before plaintiff was injured, but that it negligently failed to do so after it knew, or by the exercise of ordinary care would have known, of such unsafe condition, and that said scales were in and obstructing said passageway, and that defendant negligently maintained said floor in the unsafe condition hereinbefore mentioned at the time plaintiff was injured and for a long space of time next prior thereto, and invited plaintiff and the rest of the public into said restaurant while said floor was in such unsafe condition, all without protection or notice of any kind to plaintiff; that on or about July 20, 1931, by reason of the negligence of defendant as aforesaid, while said restaurant was open for business, plaintiff was lawfully proceeding in said passageway, and, while so proceeding, because of the passageway being obstructed by said scales, she came in contact with said scales, whereby she was caused to fall, and, as a result, sustained personal injuries (described in detail in the petition); that plaintiff entered the restaurant for the purpose of purchasing something to eat or drink, and was pursuing that purpose all the time until she was injured as aforesaid; that by her injuries so sustained plaintiff had suffered, and would suffer, great pain of body and mind, and her legs and shoulders and back and spine and left side and hips were permanently affected with pain and stiffness and limitation of motion, and that she had sustained permanent nervous injuries, and has lost weight, and her health and strength were permanently weakened — all to her damage in the sum of $2,999.99, for which she asked judgment.

The answer was first a general denial, and, after plaintiff had closed her case in rebuttal, the defendant, by leave of court, filed an amended answer containing, first, a general denial, and, following that, allegations pleading contributory negligence on the part of plaintiff, averring that the injuries which she claimed to have received were the result of her own negligence directly contributing thereto in this: That she either failed to look where she was walking, when, if she had looked, she could readily have seen the platform of the scales and thus have avoided any injury to herself, or that, if she was looking where she was walking, she did not have her mind on what she was doing, but for which she would have been mindful of the presence of the scales and could readily have avoided stumbling over them.

A reply to the amended answer was filed by plaintiff, being a general denial.

Upon a trial to a jury, plaintiff recovered a verdict for $1,800, and, after an ineffective motion for a new trial, the defendant brings the case to this court by appeal for review. The principal ground urged by defendant is that the trial court erred in not sustaining its instruction in the nature of a demurrer to the evidence offered at the close of plaintiff's case and at the close of the whole case.

The testimony adduced disclosed the following facts: That defendant corporation operated a restaurant at 3608 Olive street, which was located a short distance west of Grand boulevard on the south side of Olive street; that the plaintiff and her daughter Geraldine on the afternoon of July 20, 1931, visited a cemetery, and while there a storm came up, and, when they reached Grand boulevard and Olive street, it was after dark and raining, and about 8:30 they entered defendant's restaurant as invitees in order to procure something to eat; that the entrance to the restaurant was on the south side of Olive street, and consisted of a small vestibule in which were revolving doors in the wintertime; that this vestibule was constructed of circular glass with frame edges of several inches in width; that the glass on the left-hand side of the vestibule as one would enter was rounded and constituted the east portion of the vestibule with the frame upright comprising the south end of the east portion of the vestibule, which was approximately three or four feet south of the north wall of the building; that to the left of the vestibule stood a penny scale constructed of white porcelain; that the base, or platform, of the scales was approximately eighteen to twenty inches wide and about two feet in length, and was very close to the floor, and the upright, which registered the weights, was, as the scales then stood, at the north end of the platform or base; that the scales were so placed that the upright was, as one entered the vestibule, behind the framework or edge of the vestibule, and thereby the view of the scales was obstructed from one entering the vestibule, and that the platform of the scales protruded south nearly its full length beyond the framework of the vestibule, and that the top of the base, or platform, of the scales was white, similar to the color of the floor of the restaurant; that to the east of the vestibule and running along under the front window was a radiator; that there were tables for the customers to use in eating, immediately east of the south end of the vestibule and adjacent to the east wall of the restaurant room; that the visibility through the rounded glass as one entered was obscured somewhat by the mist; that the plaintiff wore bifocal glasses; that upon entering the restaurant the daughter Geraldine preceded the plaintiff, and, after they had gotten into the vestibule from the outer door, her daughter turned and handed her the umbrella and then proceeded to get the customers' checks and the tray, and that plaintiff, after taking a step or two, turned east to go to one of the tables on the east side of the room, and stumbled over the platform of the scales, falling with her legs rather twisted under her; that the daughter immediately came back to help her up, but she was so heavy that a couple of gentlemen diners came from their tables and assisted her to get the plaintiff up and over to the table to which she had started, and she was seated there.

Plaintiff admitted that, after receiving the umbrella from her daughter, she took a step or two and looked down at the floor, but did not see the scales or platform; that she really never saw the scales or platform until after she had fallen and had been assisted to the table on the east side of the restaurant; that the light from the south side showed the scales better than it could be shown from the north side; that the upright of the scales stood behind the partition, and the entire base of the scales protruded in front of the partition, and that the whole base of the scales extended beyond the doorframe to the south; that the table, where she was sitting after her fall, was at the east wall, but not very near the front window; that there was a light over the table where she was sitting which enabled her to see the position of the scales and the base, and, in answer to a question as to what kind of light there was in the restaurant, she replied that up towards the window it was very dark.

Plaintiff's daughter, Geraldine R. Mick, testified that as they entered the restaurant she handed her mother the umbrella, and her mother started towards the table, but she did not see her mother fall, as she herself was walking towards the counter, a little ahead, and, when her mother fell, she (witness) was just a little way from the base of the scales; that all that she could see of the scales was the platform or base, which was against the partition and extended about its full length in front or south of the partition; that she went back and was unable to lift her mother until two men came up and assisted her; that they had come to the restaurant to get something to eat; that her mother did not eat anything because she was too upset, but that she got her a glass of water; that, after they had gotten home, she saw that the garter buckle had run into the left limb and the right limb was bruised; that her mother did not sleep nights; that she and her mother now live in Chicago; that she had seen Mr. Payton, the manager of this restaurant before that night, and that she saw him that night come up and talk to the cashier, and he then went away and she did not see him any more after the accident.

Andrew Sumling testified on behalf of the plaintiff that he was working in this Thompson restaurant on July 20, 1931, and was a bus and night porter, and had been there for a year;...