Pellett v. Thomas W. Garland, Inc., 36593.
| Decision Date | 18 April 1941 |
| Docket Number | No. 36593.,36593. |
| Citation | 152 S.W.2d 172 |
| Parties | PELLETT v. THOMAS W. GARLAND, Inc. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court, Division No. 6; Frank C. O'Malley, Judge.
Action by Hazelle Pellett against Thomas W. Garland, Inc., for personal injuries allegedly sustained in a fall from a chair in defendant's store. From a judgment of dismissal, plaintiff appeals.
Affirmed.
Robt. A. Roessel, and George Mager, both of St. Louis, for appellant.
Oliver J. Miller and Lashly, Lashly, Miller & Clifford, all of St. Louis, for respondent.
HYDE, Commissioner.
This is an action for $20,000 damages for personal injuries, sustained in a fall from a chair in defendant's store during a special sale. There have been two trials. At the first trial plaintiff had a verdict, but the trial court thereafter granted a new trial on the ground that it should have directed a verdict for defendant. Plaintiff appealed to the St. Louis Court of Appeals, which affirmed the order. Pellett v. Thomas W. Garland, Inc., 116 S.W.2d 189. At the second trial, the court directed a verdict for defendant at the close of plaintiff's evidence. Plaintiff took an involuntary nonsuit, and, after its motion to set aside was overruled, appealed from the judgment of dismissal entered.
The case was retried on the original pleadings, which are summarized in the opinion of the Court of Appeals. 116 S.W.2d 189, 190. Plaintiff contends that she made a case for the jury on the pleaded charges of negligence therein stated, and incorporated herein by reference. (Leaving chairs in a crowded aisle, failure to equip them with rubber safety caps, etc.) Plaintiff's evidence at the second trial showed the following facts, which we take substantially as set out in the statement in plaintiff's brief, with additional quotations from the record: The accident occurred at the time defendant was engaged in conducting the opening day of its "Annual Sacrifice Sale — The One Event of Its Kind." This sale was extensively advertised. Defendant's place of business was located at 410 North Sixth Street. The entrance was on the east side of Sixth Street. The lower floor was thirty feet by eight-five feet, and had a terrazzo floor. This was occupied (beginning at the south wall) with shelving about a foot in width; then there was an aisle about two feet in width for use by the salespeople; then a counter two and one-half feet in width and forty-two feet in length, extending eastwardly from near the front door, which was on the south side of the building. (This was what is known as the hosiery counter, and was higher than the usual counter.) In the remaining space (about 20 feet) between this counter and the counter on the north side of the room, there were four display tables in two rows of two tables each. These tables were approximately forty-eight inches in width and five or six feet in length, of the usual height and movable, placed so that there were aisles on each side of each row of tables. The aisle between the southermost row of these tables and the hosiery counter was about three or four feet in width. This aisle was immediately in line with the only entrance at the west front of the building. People entering and leaving the store and going to and from the three upper floors came down this aisle. Near the hosiery counter in this aisle, there was a row of bentwood chairs. These chairs were about five pounds in weight, were higher than the ordinary chair, and had a "half-back" about ten inches high, with two arms, and had legs that flared out at the bottom. These chairs were not equipped with any rubber safety caps and had no rubber matting or floor covering under them but were placed upon the terrazzo floor. They were furnished for the convenience of customers at the hosiery counter. To the north of the display tables (with an aisle between them) was another aisle; then a counter of the same width as the hosiery counter, with an aisle for the salespeople and a stack of shelving.
In response to the advertisements, plaintiff, who was a regular customer, appeared at defendant's place of business and found the aisles filled with people. They were lined up along the hosiery counter and also gathered around the "bargain tables." Plaintiff said: ...
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