Miller v. F. W. Woolworth Co.

• Decision Date: 09 November 1959
• Docket Number: No. 46031,46031
• Citation: 328 S.W.2d 684
• Parties: Esther MILLER, Appellant, v. F. W. WOOLWORTH COMPANY, a Corporation, and Richard M. Bates, Respondents.
• Court: Missouri Supreme Court

Page 684

328 S.W.2d 684

Esther MILLER, Appellant, v. F. W. WOOLWORTH COMPANY, a Corporation, and Richard M Bates, Respondents.

No. 46031.

Supreme Court of Missouri, En Banc.

Nov. 9, 1959.

Thomas, Busse, Weiss, Cullen & Godfrey, James E. Godfrey, St. Louis, for appellant.

Hocker, Goodwin & MacGreevy, John M. Goodwin, St. Louis, for respondents.

LEEDY, Judge.

We adopt with some modification portions of the divisional opinion in this case, which opinion recites that it similarly adopted portions of an earlier one prepared in, but rejected by, the division (I). Quotation marks are omitted.

The action is one for damages for personal injuries sustained by plaintiff, an employee of defendant F. W. Woolworth Company, on account of the alleged negligence of said defendant company and its manager, defendant Richard M. Bates, in failing to provide plaintiff a reasonably safe place in which to work. Verdict and judgment were for plaintiff for $12,500, but the court sustained the separate aftertrial motions of the defendants for judgment in accordance with their prior motions for a directed verdict. The alternative motions for a new trial were overruled. Plaintiff has appealed from the Final judgment entered in favor of defendants.

While the plaintiff's petition purported to state a claim for relief based upon the alleged negligence of defendants in failing to furnish plaintiff with a reasonably safe place in which to work, the petition further charged that, '* * * defendants, wholly neglecting and disregarding their duty in that behalf, did furnish her with an unsafe place to work in that the counter over which plaintiff had to work was so high from the floor and so wide that plaintiff was compelled to unreasonably stretch and extend herself in performing her duties * * *,' resulting in the injuries complained of; and that '* * * defendants assured her that said place was entirely safe and that she could work there with safety and without risk of personal injury of harm, and ordered her to continue her said work * * *.'

Plaintiff's evidence tended to show that plaintiff, a saleslady forty-six years old, became an employee at defendant's store on Olive Street in St. Louis in 1949. She was assigned the duties of a 'salesgirl behind the counter' at the greeting card counter in the store. It was her duty to wait on customers and to keep the counter filled. At that time, the greeting card counter was flat on top, like a table, with glass partitions separating the various classes of cards on display. There were openings or aisles at both ends of the counter permitting a salesgirl to move in and out to and from the aisle back of the counter.

In the spring of 1950, a rack with tiers of glass sections for the display of cards was installed on the top of the counter. The rack was so constructed as to slant or slope up from the front of the counter toward the back, enabling customers, who passed along the aisle in front, to 'see the cards better.' The height of the rack varied from counter level at the front to four feet three inches high (above the floor) at the back. The counter was some fifteen feet in length and approximately three feet in width. There was one opening through the card rack on the top of the counter. The opening was occupied by a cash register, which was set with its back or high portion to the front of the counter, and it faced back so that sales could be registered from behind the counter. The top portion of the cash register was higher than the top of the card rack and the register effectively occupied the opening through the card rack. Plaintiff was about five feet two inches in height--five feet three, or five feet three and one-half inches in shoes. Plaintiff testified that when the installation was altered in 1950, defendant-manager advised her that she would be 'built a platform in the back to raise you up also.'

In making sales when standing behind the counter--'Well, usually the customer would ask me (plaintiff) where the sympathy cards were, this, that or the other, and I would point out and show them where they were and then they would pick several up and choose from them and hand them to me and ask me how much they were and give me the money and I would reach for the card, reach for the money, put it in a bag and hand it back, and the change.' Plaintiff was not expressly directed to stand behind the counter in waiting on the customers; and she could and occasionally did makes sales at the ends of the counter; but when 'I was so busy I couldn't run around, I had to stay in back * * *'; moreover, the cash register was set in the rear of the counter and, normally, the salesgirl stood behind the counter. Plaintiff's immediate superior testified that 'the proper way to do' was to stand behind the counter all of the time and to wait on customers from behind the counter, and 'the register is back there.' She said that plaintiff 'had to stand behind that counter.'

In making a sale from behind the counter, the salesgirl raised her shoulder and extended her right arm 'about halfway' across the counter, a foot and a half over the counter. Plaintiff usually rested the underside of her upper arm on the top of the display rack with palm of the hand turned upwardly. She sometimes used her left arm. There were 'anyhow two hundred' sales consummated in the course of the day, or thirty to eighty dollars worth of five and ten cent cards. The time consumed in consummating a sale probably was a few seconds. (Plaintiff testified that she guessed she rested her arm on the top of the counter for two seconds in making a sale.)

Four or five months after the counter was altered, plaintiff felt strain and pain when reaching over the counter. She informed her immediate supervisor of the difficulty. (The supervisor, who was the same height as plaintiff, had frequently relieved plaintiff during the lunch hour and had sold cards at the counter. She 'could feel strain reaching over the counter.') The supervisor in turn, two or three times, informed defendant-manager that plaintiff was having 'difficulty back at that counter' and suggested that a little platform be built 'back there that would raise us up [so] we wouldn't have so much trouble reaching over the counter,' but the manager said 'he didn't think we needed it.' The manager also told plaintiff, 'I don't think you will need a platform.'

Plaintiff continued in defendants' employ until March 27, 1953, but prior to that time her right arm had begun getting sorer and sorer, her fingers numb, and then the numbness affected her neck and shoulder. She consulted and was treated by physicians who testified she was suffering from 'traumatic neuritis,' or neuropathy, a degeneration of the nerves caused by trauma, or by 'a constant doing the same thing over a period of time,' resulting in inflammation of the nerves and the degeneration mentioned. They were of the opinion such condition was due to the continual trauma experienced in the strain of the awkward movement of the arm and shoulder in her occupation as a saleslady reaching over the counter in defendants' store. The condition of her arm has been getting worse rather than better since leaving the store, and the condition appears to be permanent. Use of the arm causes pain.

There was no evidence tending to show that the counter as altered was in itself inherently dangerous, and it was not plaintiff's theory and it is not now contended that any specific defect was shown in the construction of the installation or in the materials used in the construction thereof such as one would suppose would constitute a hazard of injury. There was no showing that the card display rack and counter, considered apart from their setting, were materially different in design or construction from the counters with display racks generally installed in stores.

Plaintiff's principal instruction in submitting her case submitted a finding as follows: '* * * if you find from the evidence:

'(1) That plaintiff became an employee of defendant, F. W. Woolworth Company on the 18th day of April, 1948 and worked continuously for said defendant as a saleslady in said defendant's store mentioned in the evidence from said date until the 26th day of March 1953; and

'(2) That during said time Richard M. Bates was the manager of said store and had authority from the said F. W. Woolworth Company to direct, instruct and supervise the work and working conditions of the employees therein, and in particular of said plaintiff; and

'(3) That plaintiff was put to work under such circumstances that she was required, in the performance of the duties imposed upon her by her said employment, to reach repeatedly over and across the sloping top of a three-foot-wide counter, the rear of which was 51 inches above the floor, and in so doing to stretch her right arm and shoulder, thus and thereby causing injury thereto; and

'(4) That said defendants knew, or in the exercise of ordinary care, should have known that said condition existed and was not reasonably safe and was likely to cause plaintiff to sustain injury by reason of the repeated stretching of her arm and shoulder, and that said defendants were informed and advised that said situation existed; and

'(5) That the said defendants failed to exercise ordinary care and prudence to remedy said condition and to furnish plaintiff a safe place in which to work, and that in so failing said defendants were negligent; and

'(6) That as a direct and proximate result of such negligence plaintiff was caused to sustain injury, and that at all times herein mentioned plaintiff exercised ordinary care for her own safety, then if you find such facts to be true, you are instructed that plaintiff is entitled to recover from defendants and your verdict should be in favor of plaintiff.'

Appellant assigns error on the action of the court in sustaining the after-trial motions of the defendants and entering the judgment for d...