Miller v. Geo. B. Peck Dry Goods Co.
| Decision Date | 01 February 1904 |
| Citation | 78 S.W. 682,104 Mo.App. 609 |
| Parties | BERNICE MILLER, by Next Friend, Respondent, v. GEORGE B. PECK DRY GOODS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Cass Circuit Court.--Wm. L. Jarrott, Judge.
Judgment affirmed.
Harkless O'Grady & Crysler for appellant.
Upon the proposition that the plaintiff can not recover in this case for the reason that the defendant was in no way at fault itself, and could not have anticipated the act of a third party in interfering with a window in an otherwise safe and proper condition, and that the accident was the result of the independent act of a third party which was the proximate cause of the accident, we invite the court's reading of the following authorities: Krone v. Railway, 97 Mo.App. 609; Goodrich v. Railway, 152 Mo. 228; Burns v. Railway, 129 Mo. 53-55; Thompson v Railway, 93 Mo.App. 548; Witte v. Stifel, 126 Mo. 295; Pavey v. Railroad, 85 Mo.App. 222; Railey v. Rome & W. R. Co., 49 Hun (N. Y.) 337 Oehme v. Cook, 15 Daly (N. Y.) 381; Railroad v. Swarts, 58 Kan. 240-241; Cole v. German Savings, 124 F. 113; Frassi v. McDonald, 122 Cal. 400; Raymond v. Kesseberg, 91 Wis. 191; Pawling v. Hoskin, 132 Pa. St. 617; Dwyer v. Shaw, 50 A. 389; Hood v. Argonaut, 23 Ky. 460; Clapp v. LaGrill, 103 Tenn. 164; Canfield v. Newport, 24 Ky. 2213; Fuchs v. St. Louis, 167 Mo. 620; Chander v. Gas Co., 73 S.W. 502.
Wilson & Wilson and Frank P. Sebree for respondent.
The reception room in defendant's store was an unsafe place for young children on account of the dangerous character and structure of the window in question, and defendant having invited the public to occupy this room, it was negligence on the part of the defendant to have kept such a window; and in failing to see that the window was kept bolted; and in failing to have a guard or rail in front of the window; and in failing to warn persons of its dangerous condition. Benjamin v. Railway, 133 Mo. 374; Morgan v. Cox, 22 Mo. 373; Hartman v. Muehlbach, 64 Mo.App. 578; Welch v. McAllister, 15 Mo.App. 492 and cas. cit.; O'Donnell v. Patton, 117 Mo. 13; Sykes v. Railway, 88 Mo.App. 193; 21 Am. and Eng. Ency. Law, p. 472; Brosnan v. Sweetser, 127 Ind. 1; Elliott v. Pray, 10 Allen (Mass.) 378; Beck v. Carter, 68 N.Y. 283; Beach, Contributory Neg., sec. 51; Tousey v. Roberts, 114 N.Y. 312; Huset v. J. I. Case Mfg. Co., 120 F. 865; Moore v. Railroad, 84 Mo. 481; Nagel v. Railway, 75 Mo. 653; Nave v. Flack, 90 Ind. 205; Warner v. Railway, 62 Mo.App. 184; Mortgage Co. v. Rees (Colo.), 42 P. 42; Market Co. v. Claggett, 19 App. Cas. D. C. 12; Boyce v. Railway, 8 Utah 353.
This action is for personal injury received by the plaintiff as the result of falling out of a window of defendant's building to the street twenty-five feet below. At time of injury plaintiff was a child between one and two years old. The judgment in the trial court was for the plaintiff.
It appears that defendant is the proprietor of a large retail business in Kansas City known as a department store. That in the prosecution of such business it has and maintains a building several stories in height, at the northwest corner of Eleventh and Main streets. That on the third floor of the building, twenty-five feet above the sidewalk, defendant maintains a large general reception room to which the public, including women accompanied by little children, are invited to come. That on the south side of the room is a large window, extending down to within three or four inches of the floor; the lower sash of which was between five and six feet high and hung on pivots with sliding bolts at the top and bottom to hold it in place. That when unbolted it would, with slight pressure, swing outwardly from the bottom. That some time prior to the injury to plaintiff there were crossbars or rods fastened from the bottom of the window frame up to a height sufficient to prevent children from falling out of the window should it be open. These were maintained by the defendant in the summer months, but at the time of the accident had been removed.
On November 5, 1901, plaintiff's mother took her to defendant's reception room. They were accompanied by a lady friend and two other small children, one being the friend's, and the other a sister of plaintiff. The mother desiring to do some shopping left plaintiff and the other child in charge of the friend while she went out into the body of the store to make her purchases. While she was gone, the two older children were playing about the room near the window, the plaintiff taking part in a limited way. They were on and off of a couch near the window and at times stood on the window sill, which, as before stated, was down nearly flush with the floor. During this play of the children plaintiff sat on the window sill and leaning back against the glass, pressed the sash out which caused her to fall to the pavement below. Though the fall was twenty-five feet and the pavement was stone, yet plaintiff escaped death; but her injuries were such as to afford no ground of complaint at the amount of the verdict.
To hold defendant liable for the injury, the petition charges four specific acts of negligence. First, that the sash was left so that it would swing out when only slight pressure was applied, such as by a little child leaning against it. Second, that the sash being swung on pivots defendant did not have any bars, or grating, or other fixtures in the window so as to prevent small children like plaintiff from falling out. Third, that defendant failed to notify plaintiff's mother or the lady friend left in charge of the children of the condition of the window. Fourth, that defendant kept the room for the reception of mothers and small children well knowing that a child "could, and might, easily fall out of the window."
The principal point urged by defendant is that plaintiff did not make a case and that its demurrer to the evidence ought to have been sustained. This is based on the fact that the window sash was provided with a bolt at the top and bottom with which it was ordinarily fastened and that when so fastened it was perfectly safe. That up to an hour and a half of the time of the misfortune to plaintiff, it was known to have been bolted. That somewhere between that time and the accident, some one without the knowledge of defendant or its servants had unfastened the bolts and opened the window and then left it shut or swung back in place, but neglected to fasten it. That defendant could not, in reason, be expected to foresee that that would be done and in consequence that a child might fall out. Keeping in mind, in this connection that the petition charges that it was negligence in defendant to maintain such a window, at such a place, without crossbars or rods to keep children from falling out of it, if it should be open, or should be shut but unbolted, the defendant's contention amounts to a statement that the trial court, as a...
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