Perry v. Stein

• Decision Date: 12 September 1933
• Docket Number: No. 22463.,22463.
• Citation: 63 S.W.2d 296
• Court: Missouri Court of Appeals
• Parties: PERRY v. STEIN et al.<SMALL><SUP>*</SUP></SMALL>

63 S.W.2d 296

PERRY v. STEIN et al.^*

No. 22463.

St. Louis Court of Appeals. Missouri.

September 12, 1933.

As Modified on Denial of Rehearing October 6, 1933.

Appeal from St. Louis Circuit Court; Fred J. Hoffmeister, Judge.

"Not to be published in State Reports."

Action by Ernestine Perry, an infant, by Rebecca Perry, her next friend, against David Stein, one of copartners doing business as Stein Bros., and others. From a judgment for plaintiff against the named defendant, such defendant appeals.

Affirmed.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for appellant.

Ely & Ely, of St. Louis, for respondent.

KANE, Judge.

This is an action for damages for personal injuries sustained by the plaintiff on June 28, 1930, while in the grocery store of defendant David Stein in the city of St. Louis, Mo.

On a trial to the jury, there was a verdict for the plaintiff for $2,100. After an unsuccessful motion for a new trial, defendant duly appeals.

Defendant stood on his demurrer. The suit was brought by the plaintiff against four defendants. David Stein conducted the grocery store at No. 2631 Franklin avenue, St. Louis, Mo.; Hyme and Celia Zorensky, husband and wife, were owners of the building; and Philip Grossman, a contractor, who had altered the premises just prior to the accident which resulted in the injuries to plaintiff. The court, at the close of plaintiff's case, sustained a demurrer as to all defendants except David Stein, the appellant herein.

The plaintiff pleaded that, while she was in the store of David Stein (defendant) as a customer and invitee, the shelving in the store and all objects on them were caused to fall, as a direct result of carelessness and negligence of all the defendants. The cause was tried by the plaintiff on the doctrine of res ipsa loquitur.

Defendant's store was located at No. 2631 Franklin avenue, which is on the north side of the street; the owners Hyme and Celia Zorensky, had contracted with one Grossman to replace the front of the store; a partition had been extended across the store back of the old front; part of the shelving on the west side of the building had been removed for the installation of this false front; the store was some 17 feet wide and 40 feet long; the shelving on the west side of the building was 38 feet long and some 7 or 8 feet high and at the time in question there were five or six shelves on which were canned goods and cereals; the plaintiff, a negro girl of 14 years of age, accompanied by her sister, between 8 and 9 o'clock on the morning of June 28, 1930, went to defendant Stein's store to buy some groceries; she was standing at the counter facing the west shelving; a clerk, not the one waiting upon her, reached up to get some canned goods on one of the shelves, when the shelving gave way and fell over towards plaintiff, throwing the canned goods out into the store; some of the cans hit her on the back of the head, shoulders, arm, and leg; she was rendered unconscious, and, when she recovered, she was on the outside of the store; she was assisted home by her sister; she went to bed and a doctor was called; plaintiff did not know who built the shelves.

Lilly B. Perry, sister of the plaintiff, testified that she was with the plaintiff at the time she was hurt; that they had bought some groceries from defendant, but had not finished buying; that she was standing near the counter being waited upon; that there were several shelves on which there were canned goods, jars, etc. She further testified that she saw a man go to get something off the shelf; that the shelf fell in such a manner that it stood supported by the counter; that the whole shelf fell over, and all the canned goods fell off.

David Stein, defendant, was called as a witness by the plaintiff, and testified that he was operating the store in question at No. 2631 Franklin avenue in June of 1930, known as Stein Bros. Grocery & Meat Company, as a tenant from month to month; that the storeroom was 17 feet wide and about 40 feet deep; that the shelves on the west side of the store were regular grocery shelves about 38 feet long and about 7 feet high; that he had cereals, such as corn flakes, etc., on the last shelf, and canned goods piled on the lower shelf; that there was a counter in front of these shelves; that he was there on the morning in question and saw the shelves fall over. He further testified: "All of the shelving on the West side of the store fell over that day from one end to the other. I was there that morning and saw the shelving fall over. When the shelving fell, it struck the counter on the way down and the merchandise, that was piled on the shelves, scattered all over the place."

Defendant P. Grossman, called as a witness by plaintiff, testified that he had a contract with Zorensky to build a new front on Stein's store, according to plans and specifications; that he started this work on the 12th or 13th of May, 1930, and finished June 27, 1930; that the first thing they did in order to start work there was to put in a false partition back of the old front. He further testified with respect to this: "The first thing we had to do in order to work there in the Stein store was to move the first part of the old front back and this false partition I spoke about was really the old front set back about 6 feet." On cross-examination by counsel for defendant Stein, he further testified: That "on the West side there was a platform, a little over three feet over the front; there is an electrical box on the same corner for operating the lights on the wall, between the wall and the old shelving; we needed a little bit more room on that side of it and there was a small section that looked like it was built into the original shelf, so we took that away. We pulled them loose, we didn't knock them. The part we took off, we didn't need to brace because it wasn't braced, it was a small piece and the original shelf was still there. It wasn't necessary to brace the old shelving after we knocked the little piece off. * * * Yes, I just had to lift these old shelves off. The shelves I took away, just pulled them away from the boards that were there.

"Q. Well, you had to get some nails out of there, didn't you? A. I suppose we did, some of it; yes.

"It wasn't fastened to the wall at all; they were fastened to the shelving we took off. They were fastened to the other shelves by cleats on each side of it; wooden cleats, yes; nailed on there. I suppose we used a crowbar; a hammer, naturally."

He further testified: "The shelving that I took off must have been a little over three feet in width. Yes; that was on the West side of the store. This shelving that I took off was added on to the original shelving, so the original shelving that was built up there was a solid board with cleats on the board, yes, and these other boards rested on the cleats. When we took this shelving down we lifted the boards off the cleats. The South end of the shelving that I removed was just a two by twelve board, whatever the width of the shelving was, all the way up. Yes; upright, with cleats on it. The shelves were laid on the cleats, the same as the others; yes. So all I had to do was lift the shelving off and take off the two by twelve board on the south end; yes. It wasn't...