Pellett v. Thomas W. Garland, Inc.

• Decision Date: 03 May 1938
• Docket Number: No. 24495.,24495.
• Citation: 116 S.W.2d 189
• Parties: PELLETT v. THOMAS W. GARLAND, Inc.
• Court: Missouri Court of Appeals

116 S.W.2d 189

PELLETT v. THOMAS W. GARLAND, Inc.

No. 24495.

St. Louis Court of Appeals. Missouri.

May 3, 1938.

As Modified on Denial of Rehearing May 18, 1938.

Appeal from St. Louis Circuit Court, Division No. 6; Charles B. Williams, Judge.

"Not to be published in State Reports."

Action by Hazelle Pellett against Thomas W. Garland, Inc., for injuries received by plaintiff when she fell from chair in defendant's store. From an order sustaining the defendant's motion for a new trial, after a verdict in favor of the plaintiff, the plaintiff appeals.

Affirmed.

Roessel & Minton and George Mager, all of St. Louis, for appellant.

Lashly, Lashly & Miller and Oliver J. Miller, all of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

Plaintiff filed her petition in the circuit court of the city of St. Louis, May 17, 1935. The petition charged in substance the corporate existence of defendant and that defendant owned and operated a store at 410-12-14 North Sixth street in St. Louis, for the sale of goods, wares, and merchandise and was so engaged on November 18, 1933; that she, attracted by an alluring advertisement in the newspapers, was a customer on that day in defendant's store; that defendant furnished chairs in front of the hosiery counter, which were not attached or fastened to the floor but were placed directly on the marble floor of the premises and were not placed on any rubber mat, carpet, or any other material or did not have on the legs thereof any caps or devices to prevent them from slipping on the marble floor; that said chairs were placed in a narrow aisle facing the hosiery counter and, by reason of the crowds attracted by the said advertised sale, the chairs and the occupants of them, particularly the plaintiff, were subjected to being pushed and pulled, stumbled and tripped upon and over by other customers of defendant, and by third parties in and on the premises; that she was making her purchase and was invited to sit upon one of the chairs aforesaid and had completed her purchase and paid for the same and was waiting for her change when suddenly with great force and violence she was thrown from the chair upon the marble floor and sustained serious injuries as a direct and proximate result of defendant's negligence in the following particulars: First, in failing to furnish plaintiff a reasonably safe place to transact her business; second, with having the chair placed and used under conditions and circumstances not reasonably safe for the use of plaintiff; third, in failing to have the chair upon a rubber mat or carpet; fourth, in failing to place caps or other devices on the legs of the chairs to prevent them from slipping; fifth, in placing the chairs in a narrow aisle where they would be liable to be stumbled over by customers and by third parties; sixth, in failing to have the chairs securely fastened to the floor; seventh, in knowing that the place furnished plaintiff for the conduct of her business was not reasonably safe; eighth, in not protecting plaintiff against injury through the acts of customers or third persons; ninth, in having chairs put on the marble floor without equipping them with caps or other devices to prevent them from slipping; tenth, with knowledge that chairs placed on a slippery marble floor without first laying rubber matting or carpet thereon were dangerous and would be dangerous to plaintiff and easily upset and pushed about. For which injuries, after particularly describing them, she asked a judgment for $20,000.

The answer of defendant, after a general denial, was in substance as follows: That whatever injuries, if any, were sustained by plaintiff were caused by her negligence directly contributing thereto, and that plaintiff failed on said occasion to exercise ordinary care to observe her surroundings and maintain her balance and equilibrium and, further, that plaintiff, while sitting in the chair, negligently and carelessly leaned forward and in doing so tipped said chair forward upon its front legs and attempted to sit in it under such conditions, which she knew, or, by the exercise of ordinary care would have known, was unstable and not properly balanced, could easily be dislodged, and might, of its own accord, slip out from under her, and on said occasion plaintiff failed to sit in the chair in the usual, customary, and ordinary manner and attempted to undertake sitting on said chair on the front edge thereof and in so doing was negligent.

Plaintiff's reply was a general denial to all the matters set up in the answer.

The jury returned a verdict in favor of the plaintiff for $4,000. In due time defendant filed a motion for a new trial, and, on the 14th day of September, 1936, the court sustained defendant's said motion on the tenth ground thereof, which reads as follows: "The court erred in not declaring the law to be that under the pleadings and the evidence the jury should find for defendant." Thereupon plaintiff duly perfected her appeal to this court, and assigns as error the action of the trial court in sustaining defendant's motion for a new trial on the ground hereinbefore set out. This requires us to review the testimony.

We are mindful of the rule that, in passing upon the claimed error, we must give the plaintiff the benefit of all testimony favorable to her theory of the case and of all reasonable inferences deducible therefrom and disregard such testimony as may conflict with testimony adduced by and on behalf of the plaintiff, but, in so doing we may disregard such testimony adduced by the plaintiff and in her behalf which is contrary to physical laws, and confine the inferences to reasonable inferences and legitimate deductions in plaintiff's favor.

Plaintiff's testimony in substance was as follows: That she became a customer in defendant's store on Saturday afternoon, November 18, 1933, between 1 and 2 o'clock, attending the advertised "Annual Sacrifice Sale"; that there was a large milling crowd in the store; that the aisle where her fall took place was about three or four feet wide, according to her estimate; that in this aisle and along the hosiery counter defendant maintained chairs to be used by customers; that after making some purchases she observed a vacant chair at the hosiery counter and sat down to wait for her change; that Miss Burkhart was with her. Her description of the chair on which she sat and of her fall was as follows: "This was a small spindle-legged chair with what I would call a half-back, not as high as an ordinary office chair; just a little light-weight chair with tiny legs that kind of flare out. I sat on this chair with people all about me. I was sitting there naturally, like anyone would sit on a chair. I was not seated on the forward edge of that chair with my elbows on the counter. I was sitting there just naturally and normally, relaxed, waiting for my change. I had completed my purchase and had given the saleslady my money. I had been waiting for fifteen or twenty minutes for my change. During the time I sat in that chair I did not stand up. When I was sitting there all of a sudden I felt a sudden jar and the next thing I knew I was thrown with great violence to the floor. The chair fell behind me, completely from under me. It was just swept from under me and I came on down on the floor with a thud.

"Q. In other words, as you were seated there normally and naturally, sitting in that chair, nothing to do except wait for your change, that chair was suddenly kicked or knocked out from under you and you went down? A. Yes, sir. My left side, my hip and my knee struck the floor and my back struck the back of the chair. A saleslady rushed out and said, `Oh, what happened; did she faint?' An elderly man—I don't know if he was an elevator man or floor man—came up and said that we had better make a report of it. He said, `You might be hurt worse than you think you are. Just a minute; I'll call the house detective.'

"Q. Did anybody who was not connected with the store make any explanation or statement to you when you were there on the floor? A. Yes; some tall, blonde lady. She peered down at me and said, `Oh, pardon me.' Before I could even get to my feet she excused herself and went on. After this the saleslady came around and also this man from the elevator. They took me upstairs and administered first aid, washed the blood off my knee and hip and put some liniment on it."

On cross-examination she stated that in other stores in the city they had chairs, some of them fastened down and some of them not fastened; that the counter at Garlands protruded some; that one couldn't sit at the counter like you would at a table, you couldn't get your knees that far under; that she didn't know the exact width of the counter. She further testified:

"Q. * * * As you were seated in that chair, my recollection of your testimony is that you sat down facing the counter and as you were seated there suddenly that chair was knocked out from under you and you sat down and the woman said, `I beg your pardon.' You state she was a tall blonde, is that right? A. Yes, sir. The chair fell behind me away from me on the floor behind me. I fell sideways. I fell on my left side.

"Q. There was an aisle behind it (the counter) where the salesgirl was and behind it were some cases that contained boxes of different kinds of hose. Is that right? A. Yes, sir.

"Q. And there were, at places on this counter, some hose also lying—some boxes of hose, perhaps? A. Yes.

"Q. You say that behind you and forming the aisle in back were some tables on which lingerie was displayed, is that right? A. Yes, sir.

"Q. That is what you term an aisle? A. Yes, sir.

"Q. Those tables for lingerie, were there just two of them there, or three of them, and were they in a row tight together, or just a table here and a big long space and another table? A. No, there is the table and the aisle and the table. There are aisles all around these little bargain...