Milzark v. National Biscuit Co.

• Citation: 259 S.W. 832
• Decision Date: 04 March 1924
• Docket Number: No. 18474.,18474.
• Parties: MILZARK v. NATIONAL BISCUIT CO.
• Court: Court of Appeal of Missouri (US)

259 S.W. 832

MILZARK v. NATIONAL BISCUIT CO.

No. 18474.

St. Louis Court of Appeals, Missouri.

March 4, 1924.

Rehearing Denied March 18, 1924.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Mary R. Milzark against the National Biscuit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Bishop & Claiborne, of St. Louis (C. A. Vilas, of New York City, of counsel), for appellant.

W. J. Blesse and William Kohn, both of St. Louis, for respondent.

DAUES, J.

This is an action for damages for personal injuries. There was a verdict and judgment for plaintiff for the full amount sued for, to wit, $2,999. From this judgment, defendant has appealed.

The petition alleges that the defendant negligently permitted the floor, at a place where plaintiff was at work for defendant, to become covered with chocolate and icing, which the defendant used in the manufacture of cakes, etc., and it is alleged that, because such substance was permitted to fall and remain on the floor, same became slippery and dangerous to walk upon, and that the defendant knew, or by the exercise of ordinary care could have known, of such condition in time to have cleaned up the floor before the accident happened, and that plaintiff, by reason of such slippery condition of the floor, slipped and fell, whereby she was injured.

The answer is a general denial.

But one point is made on this appeal. Appellant insists the judgment should be reversed because same is not supported by any substantial evidence. Therefore we recite the facts such as the record contains which will determine the sufficiency of the proof to make a case for the jury under the petition.

Plaintiff, a woman 52 years of age, had been working in the icing department of defendant's business conducted in the city of St. Louis, and had been working for defendant for 15 years. It was her duty, together with other employés, to put a coat of icing upon cakes that were baked at defendant's plant. A "chocolate table" about 8 feet long was used to carry out this work. The cakes, after being so treated, were loaded upon wooden trays and placed upon a truck and then moved to another place in the building. The truck usually was loaded with many trays, sometimes as many as 25, one stacked upon the other, and it was a part of plaintiff's duty to move the trucks when loaded and return same when empty.

On May 9, 1922, the day the injury occurred, plaintiff, together with another woman, was instructed to take a truck load of cakes to another part of the building away from tip chocolate table. On the return with the truck with the empty trays, plaintiff, according to her testimony, would be required to pass an instrumentality known as an icing machine and an elevated sink or water tank. The truck was to be pushed next to the icing machine. On this particular occasion, plaintiff says she was on her way to return the truck and empty trays, and that she had placed same next to the icing machine and started over, as it was her duty to do, to the table at which she was engaged in doing her work; that in doing so she slipped on the floor, and, being unable to catch herself, fell down and injured herself. She states that after she fell on the floor she noticed there was dirt there, "and I got chocolate on my arms, or icing or something, and on my dress and on my stocking. * * * There was all kinds of dirt that accumulated around there; it was chocolate, icing, most anything, because I seen it on my hand and wiped it off." She further testified that the place was wet and dirty, and that she noticed that there was something slippery under her shoe. She said that she slipped forward, but finally hit the floor with her back and received a heavy fall. She was required to remain in bed for 18 days after the accident without moving, and was confined to the house for many months thereafter. She testified that her leg was injured, and that at the time of the trial she was still unable to walk on the injured limb and had to use crutches, and that she was unable to walk without the aid of crutches, and that she still suffered much pain in the hip and in the right leg.

On cross-examination, plaintiff again described the place where she worked about as above indicated, stating, however, that the table at which she worked was 10 or 12 feet from a window, that there were three or four other windows in the place, and that the windows were not obstructed with blinds or curtains on this occasion, but that it was dark at the particular place where she was working and where she fell, finally saying that it was not light at that point. It seems that the cakes were treated with a coating of marshmallow, but the cakes worked upon on this floor of defendant's shop at the time of the accident had had their first coat of marshmallow the day before. Plaintiff says that when she went to work that morning there was nothing on the floor by way of slippery substances, but that same had been thrown there before she fell because she got it on her feet and clothing, and she fell on the particular spot where such slippery confectionery was found. She said that she had carefully looked around that morning when she went to work and did not see it there then, and that she and the other employés were told to be careful, but that it was dark at this spot, and that she did not see the substance on the floor before she fell. She reiterated, on cross-examination, over and over again, that she was sure the floor was slippery from coating substances at the point where she fell, and that she herself observed the situation after the fall but only then, and that the slippery matters consisted of both white icing and chocolate. When asked whether sweeping the floor would have removed the substance and would have prevented the slippery condition, she answered, "Well, sweeping wouldn't do it any good if it isn't clean," and that she would have fallen just the same as the chocolate was wet, and that she knew it was wet because she got some on her arm and dress and stocking in the course of the fall.

In further describing the place, witness said the substance on the floor consisted of "all kinds of smeared stuff." To account for this condition of the floor at this point, plaintiff testified, on cross-examination, that, though they did not use any marshmallow on that day, the defendant's employés were however using a bagging machine pulling cans filled with marshmallow all that morning with a hook, and that, the marshmallow being in liquid form, or nearly so, same easily could have slopped out of the tubs or cans in which it was being conveyed, that marshmallow fluid often did slop out of the cans after being so moved, and that the cans customarily, and particularly on this day, were either pulled through the floor or over the floor at a point where she fell, and that the cans were not conveyed on wheels or rollers but dragged flat on the floor, the cans often being filled to the very top. That the cans were moved in this manner was corroborated by other witnesses.

There was evidence that defe...