Perringer v. Lynn Food Co.

• Decision Date: 04 March 1941
• Docket Number: No. 25699.,25699.
• Citation: 148 S.W.2d 601
• Parties: PERRINGER v. LYNN FOOD CO.
• Court: Missouri Court of Appeals

148 S.W.2d 601

PERRINGER v. LYNN FOOD CO.

No. 25699.

St. Louis Court of Appeals. Missouri.

March 4, 1941.

Rehearing Denied March 18, 1941.

Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.

"Not to be reported in State Reports."

Action by Lydia C. Perringer against the Lynn Food Company, for injuries sustained by plaintiff when, as a customer in defendant's store, she slipped and fell on the floor. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wilbur C. Schwartz and Orville W. Richardson, both of St. Louis, for appellant.

Clark M. Clifford and Wm. F. Fahey, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is an appeal from a judgment for plaintiff in a suit instituted in the Circuit Court of the City of St. Louis against Lynn Food Company, a corporation, as defendant, for injuries sustained by plaintiff on May 27, 1937, when as a customer in defendant's store, located in the City of St. Louis, she slipped and fell on the floor.

The specific charges of negligence upon which plaintiff elected to go to the jury were, that defendant, its agents, servants and employees, negligently spilled water on said floor, which caused said floor to become wet, damp, slick and slippery and rendered said floor dangerous and not reasonably safe, and, that said defendant, its agents, servants and employees, negligently and carelessly wiped up said water which had been spilled on said floor in such a manner as to cause said floor to remain in a wet, damp, slick and slippery condition, rendering said floor dangerous and not reasonably safe. Other charges of negligence in the petition are not before us. Karr v. Chicago, R. I. & P. Ry. Co., 341 Mo. 536, 108 S.W.2d 44, and cases therein cited.

Plaintiff's Evidence.

Mrs. Perringer took the stand as the first witness in her own behalf. She testified that she was 64 years old and that on the day in question she went to the defendant's store, which is located on the northeast corner of Sixth and Delmar. She was accompanied by her daughter, Mrs. Myrtle Sullivan. Arriving there at about 1:30 p. m., they walked up the steps to the second floor and were then facing east, they then walked to the south side of the store, then to the east end of the store, and then back north to the northeast corner on the second floor, where plaintiff purchased some soap and powder. She was carrying a wire basket into which she placed her purchases.

The mop counter was also at the northeast corner of the store. While she was standing there, one of the clerks stepped to a door which is located in the northeast corner of the store, and, when Mrs. Perringer inquired of him concerning the price of the mops, he asked her to wait a minute and she then saw him throw a sack "across to someone" in a southwestwardly direction, i. e., to her left. She did not see anyone catch the sack, nor did she hear this clerk make any statement with reference to what should be done with the sack. The clerk then walked over to her and, after she had decided not to buy any mops, she turned and walked west in the aisle along the north side of the store. After she had walked some twenty or twenty-two feet she remembered that she wanted some sugar, set her basket down to her right, turned to her left or to the south, and, while so turning, her left foot slipped, causing her to fall in a sitting position.

She said: "I put my two hands down to raise me up and I found the floor was damp and greasy and slippery." Objection on the ground that there was "no charge of grease" was overruled. While trying to raise herself up, her left hand slipped and she fell again. A clerk and one or two customers helped her up and she sat on a nearby packing box. Her daughter, who had been in another part of the store, came over to her and called her attention to a heel mark, about four to six inches long, on the floor. However, she never saw any water or grease on the floor.

Plaintiff also testified that the day was bright and clear and that "the store was well lighted." She also said that she could "readily see any object that I was looking at," and "I could see the price tags on the cans".

On redirect examination, plaintiff testified that after six or seven weeks she had occasion to look at the dress which she was wearing at the time she fell. Plaintiff had been in bed during this period and the dress had been hung away. Over objection of defendant, she stated that there was a dark spot some four or five inches in diameter "near the middle of the dress on the left side".

Claude Shannon, called as a witness for the plaintiff, testified that on the day in question he was employed by the defendant as a grocery buyer on the second floor. He left the defendant's employ about three months before this trial. He said that at about 1:15 in the afternoon he was walking east in the north aisle and saw Miss Hazel Wilderman, another employee (since married and thereafter referred to as Mrs. Strothinke), walking in the north aisle carrying a brain bucket with water in it. He saw her spill some of this water near the noodle tables in the north aisle. He testified that the aisle was about eight or nine feet wide; that the water was spilled about two feet north of the north edge of the tables. He told Mrs. Strothinke that he would take care of it, walked on back to a room in the northeast corner of the store and there obtained an ordinary gunny sack used for sugar or beans. As he came out of the door and started back to clean the water up, Mrs. Perringer asked him about the mops. Thereupon, he tossed the sack to another clerk, Mr. Gallagher, who was in the north aisle at that time. He said that Mr. Gallagher was standing only two or three feet west of Mrs. Perringer; that Mrs. Perringer was facing Mr. Shannon, i. e., facing north; that no one else was around and that as he tossed the sack to Gallagher, he told the latter to go "and clean up the water on the floor". He testified this conversation was had in the presence of Mrs. Perringer and that she could hear it as well as he could. Shannon then went on to wait on Mrs. Perringer and walked to another part of the store. He did not see Mrs. Perringer fall, but heard about the accident later on.

Plaintiff's daughter, Mrs. Myrtle Sullivan, testified that she had accompanied her mother to the store on the afternoon in question and walked with her to the northeast corner of the second floor of the store. As her mother went to the mop counter, she saw a clerk standing in the doorway in the north wall of the store. He said, "Wait a minute," and she saw him throw a sack across the aisle in a southwesterly direction, but she did not see who caught the sack and paid no further attention to the matter. She left her mother at this time and walked west in the north aisle and was shopping in a little alcove north of the aisle and some distance west of where her mother fell.

She then looked east in the aisle and saw two clerks helping her mother from the floor. She rushed down to help her mother and "at that time a girl came through the store and said, `Did anybody wipe up the water I spilled?' I said, `Wipe up the water you spilled? My mother almost broke her neck on account of it.'"

After her mother sat down on a box, she then called her mother's attention to a heel mark about eight inches long on a damp spot on the floor.

She said that there was no difference in the color or shading of the floor; that she did not see any water there, did not feel the floor with her hand, but still could tell by looking at the floor that it was damp; "You could tell by looking at it very definitely it was wet."

All testimony bearing on plaintiff's injuries will be separately reviewed at the end of this statement.

Defendant's Evidence.

Mrs. Hazel Strothinke testified that she was 25 years old, formerly an employee of the Lynn Food Company, leaving there when she was married in September of 1937. On the day in question a can of syrup had been knocked off of a shelf in another side of the store. She went to a back room and there obtained a brain can, which had come from the meat department downstairs that morning. She washed the can out with warm water and a rag and then filled it about half full of clear water. She testified that the can was "perfectly clean with perfectly clear water in it," and that there was no grease in the bucket. Plaintiff's witness Shannon had also previously testified that there was "clear water" in the bucket and that a "real small glass or less" had been spilled on the floor, covering a spot about nine or ten inches in diameter.

Mrs. Strothinke said that about half of a teacup of water was spilled. Mr. Shannon, walking west in the aisle, told her that he would take care of the spilled water and so Mrs. Strothinke walked on west and wiped the syrup up. She testified that after wiping the syrup up in another part of the store the floor was still slightly moist and that she threw sawdust on it.

This witness did not see Mrs. Perringer fall and denied that she had come up afterward and asked anybody if the water had been wiped up. When she heard about the accident later on she looked at the floor in the north aisle. She saw a spot about a foot in diameter which was lighter than the rest of the floor.

Thomas Gallagher, formerly employed by the defendant and at the time of trial working elsewhere, testified that on the day in question he was walking east in the north aisle on his way to lunch. When he got to the back end of the store Mr. Shannon tossed him a sack and told him to wipe the water up. This water was near the noodle counter, some ten or fifteen feet west of where Shannon had thrown him the sack. He went back there and wiped the water up. He said there was about a glass of water on the floor, which was of commercial hardwood type, not greased or oiled or covered with sawdust. After he had spent some five or ten minutes wiping the water up he felt the...