Mullen v. Sensenbrenner Mercantile Co.

• Decision Date: 07 March 1924
• Docket Number: No. 23935.,23935.
• Citation: 260 S.W. 982
• Parties: MULLEN v. SENSENBRENNER MERCANTILE CO.
• Court: Missouri Supreme Court

260 S.W. 982

MULLEN v. SENSENBRENNER MERCANTILE CO.

No. 23935.

Supreme Court of Missouri, Division No. 1.

March 7, 1924.

Motion for Rehearing Denied April 7, 1924.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Mary Mullen against the Sensenbrenner Mercantile Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Joseph Goodman and August Walz, both of St. Louis, for appellant.

Kelley, Starke & Bassett, and Conway Elder, all of St. Louis, for respondent.

SMALL, C. I.

Suit for personal injuries occasioned by the plaintiff falling on the tile entrance of defendant's mercantile establishment in the city of St. Louis. The charge of negligence in the petition was that said tile entrance was an unusually slick, smooth, and glassy surface. It was at an unusual, unsafe, and dangerous angle or slope. It was maintained with a crack in it; that defendant failed to make said entrance safe for pedestrians by roughing the tiling, or spreading sawdust thereon, or by placing thereon rubber mats or rugs or other apparatus or material to prevent persons from slipping and falling. That the manner' in which said en trance was kept was a nuisance, and that defendant was negligent in failing to warn plaintiff of the dangerous condition of said entrance.

The answer was a general denial and contributory negligence. Verdict for the defendant. Plaintiff appealed.

The plaintiff's evidence tended to show that on the 17th day of November, 1919, plaintiff, aged 64 years, entered defendant's store to purchase certain articles of merchandise. She remained a short while, and, not being waited upon promptly, started to leave by the same entrance she had come in, and fell and broke her right leg, and suffered other injuries. The floor of the entrance was of small hexagon block tile, and sloped upwards a little less than one inch to the foot from the inside edge of the sidewalk for a distance of about five feet, where it joined the floor of the store room proper. Said entrance was also about five feet wide, and was flanked on each side by show windows. A few inches from the point where the entrance joined the floor proper there was a slight crack in the tile. Plaintiff's witnesses variously describe it as a slight crack due to settlement; small crack; one-eighth to three-sixteenths of an inch deep; almost one-eighth of an inch wide; one-sixteenth to one-eighth of an inch bulge where crack was; the tile one-quarter of an inch higher on one side of the crack than the other.

Defendant's evidence tended to show that the crack was filled up with cement even with the face of the tile, and that it was no wider than the space between the tiles. Two photographs introduced by the plaintiff are found in the record. They were taken to show this crack. They show that the crack is hardly perceptible and apparently no larger, if as large, as the space between the tile in other places where there is no crack. Plaintiff says that as she went out the heel of her shoe on her right foot caught in this crack, and her right leg and ankle turned under her as she fell and her right leg and foot were projected straight forward. She did not see her foot catch in the crack, but felt it catch just before she fell, and after she fell she saw she was near the crack. A witness for plaintiff testified that about a year before plaintiff was injured she observed a crack in this entrance, and that as she was leaving the store her little niece, two or three years old, stumbled, and she found the child's nose bleeding, but did not notify the defendant or any of its employees. This witness, however, does not state how this child happened to stumble, but does state that she had been in the store many times, frequently through the same entrance, but never had any other trouble. Plaintiff testifies that she had never been in defendant's store before, but as she entered on the occasion of her injury she notice the entrance, saw that it was a tile floor, saw that it was quite an incline, looked where she was walking, but that in going out she did not look at the floor at all, but looked straight ahead. Her shoes had common sense heels, and she had worn them several times before; that she had previously entered other stores with tile floors, and they were nothing new to her; "that walking up an incline on a tile floor was all right, but not in coming down." She further testified that she entered and left the store between 1 and 2 o'clock, and that the entrance was perfectly light. Plaintiff's evidence further tended to show that there were many store entrances made of the same kind of tile as defendant's, and that such entrances were sloping, but some of them less sloping than the defendant's entrance. Plaintiff's evidence further tended to show that on entrances of the same grade or slope as defendant's it was customary to adopt safety plans to prevent people from slipping by placing safety treads at intervals in the entrance, or by using nonslip or roughened tile, or a mat of nonslip material; that the tile of defendant's entrance was of glazed material, and had become smooth. Plaintiff placed Joseph Sensenbrenner, president of the defendant, on the witness stand, and he testified that he had charge of said store and entrance; that said entrance was built in July, 1915, and had been used by hundreds daily, ever since its construction, and there had never been any complaint of any person slipping or falling in said entrance before or after plaintiff was injured; that he heard of plaintiff's injury at the time, and when he got to her she was lying two or three feet from the small crack in the entrance, hex body being half in the entrance and half on the sidewalk ; that no change had been made in the crack or the entrance after the plaintiff was injured; and that he had never seen any such entrances provided with rugs. Other witnesses for plaintiff testified they never saw such entrances covered with sawdust. Plaintiff offered to show to the jury three types of roughened or nonslip tile, but the court refused the offer but allowed the plaintiff's witness Goldsmith to testify there were a great number of different types of roughened tile which will prevent slipping; and that the tile in defendant's entrance was vitrified tile. The court also refused to allow Goldsmith to testify whether there was any way of protecting such tile so that persons would not slip thereon, but afterwards permitted him to testify that a perforated rubber mat could have been used on defendant's entrance to prevent slipping. Defendant's evidence tended to show that there were many entrances to store buildings in St. Louis made of the same kind of tile, with the same or greater slope than defendant's; that defendant's tile was not glazed but smooth, dull finish tile, and might get slippery; that the slope of the entrance was about three-eighths of an inch to the foot; also that evidence tending to show that when plaintiff fell she was several feet from the crack and near the sidewalk. By agreement of the parties, after the evidence was all in, the jury, accompanied by the deputy sheriff, went to the scene of the accident, and viewed the entrance in question. At the close of the plaintiff's testimony and at the close of all the evidence, the defendant asked a demurrer to the evidence, which the court refused. Plaintiff complains of several instructions given for the defendant and by the court of its own motion, but in the view we take of the case it is not necessary to consider such instructions.

II. As to evidence the court excluded: The court properly refused to allow the plaintiff to introduce and show to the jury specimens of roughened or nonslip tile, because defendant was not required to use...