O’Bauer v. Katz Drug Co.
| Decision Date | 04 April 1932 |
| Docket Number | 17426 |
| Parties | O’BAUER v. KATZ DRUG CO. |
| Court | Kansas Court of Appeals |
Rehearing Denied May 2, 1932.
Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.
“ Not to be officially published.”
Action by Rose Belle O’Bauer against the Katz Drug Company wherein there was verdict for plaintiff. From order granting defendant new trial, plaintiff appeals.
Reversed and remanded, with directions.
Prince & Beery and Walter A. Raymond, all of Kansas City, for appellant.
Harris & Koontz, of Kansas City, for respondent.
This is an action for damages for personal injuries. Plaintiff recovered a judgment in the sum of $5,000.00. The court sustained defendant’s motion for a new trial on account of its failure to give defendant’s instructions in the nature of a demurrer to the evidence. Plaintiff has appealed.
The facts show that defendant was engaged in the operation of a "Cut Rate" drug store, located at the northeast corner of 12th & McGee Streets, in Kansas City. Along the north wall of the store room was a long counter, known as the soap counter, extending the full length of the room on the north side. Between the soap counter and the show cases to the south was an aisle, referred to as the "north aisle." There were three aisles leading from the south side of the room to the north aisle and there was an entrance to the store at the southwest corner of the room.
Defendant had advertised a special sale of drugs and merchandise which plaintiff was attending when she was injured. Plaintiff had attended similar sales and testified that they attracted a large crowd of people. On the day in question, among other articles at special prices were various kinds of soap and certain wooden tables.
Plaintiff entered the store through the main entrance at the southwest corner. She walked to the east side of the room then north along the north and south aisle to the north end of the room where the soap counter was located. Plaintiff in her brief says that the north aisle, along the soap counter was about 3 ½ feet wide. The testimony of defendant shows that it was 7 to 9 feet wide. People were closely crowded, not only at the soap counter but in the north aisle or the one immediately south of the counter. Plaintiff went west in the north aisle, intending to purchase soap at the soap counter but, finding that she could not reach the counter on account of the crowd thereat, she turned around and started back toward the east. Many other disappointed soap buyers did likewise, the direction of those in the crowd, not buying soap, being toward the east. The object of plaintiff, and apparently the other persons who were moving toward the east, was to get out of the crowd, although plaintiff did not intend to leave the store, as she expected to make purchases in other parts thereof.
While plaintiff was walking back in the north aisle toward the east she fell upon one of the tables that we have mentioned. These tables were three or four in number and had been placed in a row along the south side of the north aisle, extending into the aisle a distance of 10 inches from the show cases, located along and constituting the south side of the aisle. These tables were oblong in shape, about 10 inches wide, 14 inches long and about a foot high. They weighed about 10 pounds each and were placed with their length parallel to the length of the aisle. Plaintiff testified that she fell on one of these tables, not by any individual in the crowd pushing her, but by reason of the surging of the crowd as a whole. She testified the "crowd pushed me against the table and I fell on it." "The jam pushed me over on the table." "I fell on it" (the table). "I fell right there just as any one would push anybody out in the aisle." In reference to the position in which she fell and her injuries, she testified: "I fell right on my face and on my fingers and hurt my fingers and hurt my knee and my right side and my hip and hurt the back of my head and I felt faint and felt like I wanted to throw up." After she fell there were bruises on her wrist and upon her knee and her wrist was sprained. The doctor found that she had a bruise and an abrasion on her right forearm below the elbow and "a bruise on the right leg on the inner side of the leg below the knee, a bruise of the muscles below the knee." When asked which part of her anatomy first struck the table she stated that she did not remember; that she fell on her stomach and her face; that she fell flat on the table and She further testified that when she fell on the table it "was broken in pieces"; that the table "broke and the table kinda slipped out."
As to whether she saw the table before she fell she testified, on direct examination, that she did not know that the table was there and did not see it until after she had fallen upon it. "I didn’t see the tables until the jam pushed me over on the table."
On cross-examination she testified: "I didn’t see the tables until I was crowded, *** until I was jammed on them." Her attention then was called to her deposition. Therein she was asked how far away from the table upon which she fell was she when she first saw it and she answered:
"I saw it when I got right up to it.
Q. But you were planning to step around it?
A. Yes.
Q. And if somebody hadn’t pushed you you would have stepped around it?
A. Yes."
She stated that she so testified in her deposition. She was then asked at the trial if she saw the table before she fell on it and she answered, "Yes, sir," and that she had planned to step around it.
Plaintiff insists that the court erred in sustaining defendant’s motion for a new trial; that defendant was negligent in placing the table in the aisle under the circumstances and that such negligence was one of the proximate causes contributing to the injury, although the pushing of the crowd may have been another cause.
It may be conceded that the leaving of the table in the aisle, under the circumstances, was negligence but the question to be decided is whether or not such negligence contributed to the injury as one of the proximate causes. There is no presumption or inference that, because plaintiff fell upon the table, plaintiff’s injury resulted proximately therefrom. The duty was upon plaintiff to prove in some manner, either by direct evidence or by evidence from which the jury could infer, that the negligence of the defendant, in leaving the table in the aisle, contributed as one of the concurring causes to plaintiff’s injury, and this matter must have been established to a reasonable certainty. Schmidt v. Transit Co., 140 Mo.App. 182, 187, 120 S.W. 96. The burden was upon plaintiff to show that she would not have received her injury had it not been for the presence of the table and there must appear in the evidence something upon which the jury might have based this conclusion. It must be founded upon more than mere guess or speculation. Grubb v. Dunham, 201 Mo.App. 504, 508, 214 S.W. 256.
There is nothing in the testimony suggesting that there was anything about the table, itself, rendering it dangerous, such as having sharp edges or protruding nails to cut or scratch one falling upon it. The negligence of defendant consisted wholly of having the table where it was located in the aisle. There is not the slightest testimony or inference from the testimony from which a jury could find that plaintiff would not have been as seriously hurt had she fallen upon the floor instead of upon the table, or to show whether the table did not, in fact, break the force of the fall.
But plaintiff insists that there was evidence tending to show that plaintiff tripped or stumbled over or against the table. Of course, if this be true, another situation would be presented. However, there is no testimony tending to so show. Plaintiff contends that the fact that she had bruises on her leg below her right knee gives rise to the inference that she tripped on or over the table or stumbled against it. However, the testimony in reference to this matter shows no more than that the doctor found that she had a bruise on the inner side of her leg below the knee. In view of plaintiff’s reiteration in her testimony that the crowd pushed her and that she fell on the table, to say that, because she had a bruise on the inner side of her leg, an inference arises that she tripped on or over the table or stumbled against it, would be indulging in the rankest speculation, if not contrary to all the inferences to be drawn in the case. So far as the record shows the sole cause of plaintiff’s injury, was the surging of the crowd.
However, plaintiff claims that the demurrer to the evidence should not have been sustained for the reason that the presence of the table over which plaintiff fell caused her to pause and the crowd pushed her because its progress was retarded. To use plaintiff’s own words: "The presence of the table forced her to hesitate for the purpose of stepping around the table, and threw her out of step with the crowd, and thereby the onward pressure of the crowd caused her to fall by reason of her inability to move her feet forward in step with the crowd, the table obstructing them and thus barring her way." This contention is based upon plaintiff’s testimony, upon cross-examination, in which she changed her testimony to the effect that she did not see the table before she fell, to a statement that she saw it immediately before she fell and had planned to step around it. There is not a particle of testimony tending to show that she stopped or...
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