Phillips v. Commercial National Bank

Decision Date10 October 1925
Docket Number26,084
Citation239 P. 984,119 Kan. 339
PartiesCHLOE E. PHILLIPS, Appellee, v. COMMERCIAL NATIONAL BANK, Appellant
CourtKansas Supreme Court

Decided July, 1925.

Appeal from Wyandotte district court, division No. 1; EDWARD L FISCHER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MASTER AND SERVANT--Liability for Injury to Servant--Sufficiency of Evidence. In an action by an employee against her employer for damages alleged to have been sustained by her through falling on a slippery floor and down a stairway in her employer's banking establishment, the record examined and held sufficient to sustain her cause of action as against a demurrer to plaintiff's evidence.

2. SAME--Risks Assumed by Servant--Question for Jury. The question whether plaintiff assumed the risk of injury to herself in walking over the floor in defendant's banking house was one for a jury's determination.

3. TRIAL--Verdict--Special Interrogatories--Answer of "Doubtful" to Controlling Issue. Where one of the issues of controlling importance was whether plaintiff's disability, injuries and maladies were caused by falling on a slippery floor negligently maintained by the defendant in December, 1920, or were the result of an attack of influenza in March, 1922, and there was competent testimony to determine that controverted issue, and the jury by a special finding declared they were doubtful on that point, but rendered a general verdict in plaintiff's behalf, a judgment entered thereon was erroneous.

4. SAME--Other special findings of the jury examined and criticized for want of candor and consistency.

E. S. McAnany, M. L. Alden and T. M. Van Cleave, all of Kansas City, for the appellant.

David F. Carson, of Kansas City, William S. Hogsett and Murat Boyle, both of Kansas City, Mo., for the appellee.

OPINION

DAWSON, J.:

Plaintiff brought this action for damages for injuries alleged to have been sustained by her in falling on a slippery floor and down a stairway in the banking house of defendant, her employer. She charged that the defendant bank was negligent in maintaining the floor in a slippery condition; that the floor was dangerous to walk upon; that defendant knew, or in the exercise of ordinary care could have known, of its dangerous condition in ample time to have remedied its defects before it caused plaintiff's injuries; that defendant negligently failed to furnish plaintiff with a safe place in which to work; and she alleged that she did not know of the dangerous condition of the floor and of the likelihood of injury from walking thereon, and could not have known of its dangerous condition by the exercise of ordinary care on her part.

The floor in question was that of a room in the second story of a building which the bank had rented shortly before plaintiff entered its service. A stairway led from this room down to the bank's main business quarters. In this second-story room the bank established its auditing and transit department. Plaintiff's desk was in this room near the head of the stairway. Some fifteen or eighteen clerks worked on the same floor. When the bank acquired possession of this room it remodeled it to some extent, and the floor was treated with some sort of floor stain, wax or varnish. Every evening the janitor spread a sweeping compound over the floor and swept it. Once or twice, a few weeks apart, the floor was treated with some sort of oil or other preparation for floors. This would be applied on a Saturday so that it might have until Monday to dry. The times and manner of treating this floor is the subject of much pother in the abstracts and briefs of the parties, and we merely adopt enough of what is least controversial about it to form a fairly intelligible narrative. One Monday morning, December 20, 1920, after one of these special floor treatments, it was noticed that the floor was not dry. Plaintiff and some of the witnesses testified that the floor was "very wet looking as though something had been done to it." On Tuesday it was still wet looking, and on Wednesday it looked the same, but "was probably drying a little bit." On Thursday the floor "was getting sticky," according to plaintiff. She also testified that it was slippery. On that Thursday afternoon plaintiff started for the head of the stairs to carry some papers down to an officer of the bank. Her foot slipped and she pitched forward and fell headlong down the stairway, receiving various injuries, the severity of which was not then fully realized if the testimony concerning them adduced in her behalf some two or three years afterward is true. An officer of the bank assisted her to rise; she delivered the papers, and then lay down on a couch in the rest room for half an hour. Then she got up and attended to her duties until the close of the day's work. She then joined her brother and they dined together. She refrained from telling him about her fall because he would tell her mother and thus spoil her mother's Christmas with anxiety. She purchased some liniment to bathe her arm and hand. She went to bed and stayed there until the next Wednesday, and then resumed her work at the bank, a half day at a time, for four days. After that she worked at the bank steadily and regularly until March 2, 1922, for fourteen months, when she was taken ill with influenza. Following that illness plaintiff had a succession of ailments which repeatedly compelled her to go to a hospital and prevented her resumption of work at the bank. The defendant carried her on its payroll for two months. Since she had the influenza plaintiff has been altogether incapacitated. She was carried into the court room on a stretcher to give her testimony in this case.

Defendant's answer contained a general denial, pleaded plaintiff's contributory negligence, and alleged that the condition of the floor was open and obvious and that whatever risks plaintiff was subjected to were assumed by her.

On the issues joined, testimony for the litigants was presented at length. Defendant's demurrer to plaintiff's evidence was overruled. The jury returned a verdict for $ 10,000 in plaintiff's favor, and answered certain special questions. These read:

"Q. 1. Did the plaintiff on Monday, Tuesday, Wednesday and Thursday preceding her fall on December 23, 1920, go up and down the stairs and cross the place where she fell, from ten to fifteen times each day? A. Yes.

"Q. 2. Did any of the fifteen to eighteen clerks employed upstairs in the transit department or any of the other clerks or officers of the bank, who had occasion to go upstairs to the transit department, crossing the place where plaintiff testifies she fell, ever fall upon said floor at any time during the year 1920? A. No.

"Q. 3. Was the plaintiff in 1920, preceding the time she fell, used to walking on oiled, waxed and polished floors? A. Yes.

"Q. 4. On Thursday when plaintiff walked over the floor in the vicinity of the stairs where she testifies she fell, did the floor appear to the plaintiff to be drying and kind of sticky? A. Yes.

"Q. 5. Was the floor slick or slippery where plaintiff says she slipped? A. Yes.

"Q. 6. If you answer the preceding question No. 5 'yes,' was its condition apparent and obvious to the plaintiff on the Monday, Tuesday, Wednesday, and part of Thursday, before she slipped? A. Yes.

"Q. 7. If you answer the preceding question No. 6 'no,' what was there to prevent plaintiff from seeing and appreciating that it was slick or slippery on each of these days? A. Nothing.

"Q. 8. If you answer question No. 5 'yes,' did the plaintiff appreciate the danger of walking on such slick or slippery floors? A. Do not know.

"Q. 9. If you answer the preceding question No. 8 'no,' state what prevented plaintiff from appreciating the danger of walking on such slick or slippery floor? A. Too busy.

"Q. 10. Was the condition of the floor where plaintiff says she fell plain and obvious to persons walking over the same? A. Yes.

"Q. 11. Did plaintiff know or have ample opportunity to know of the condition of the floor where she says she slipped prior to and at the time of her fall? A. No.

"Q. 12. Did plaintiff about March 2, 1922, go to bed with influenza and suffer from influenza a number of days? A. Yes.

"Q. 13. Has plaintiff been an invalid practically all the time, largely confined to bed, since she first took to bed with influenza? A. Yes.

"Q. 14. Was the attack of influenza the cause of her present condition? A. Doubtful.

"Q. 15. Were the plaintiff's appendix and Fallopian tubes found to be in a catarrhal condition and the appendix removed by operation? A. Yes.

"Q. 16. If you find that the defendant was guilty of any negligence that caused injury to the plaintiff, state fully of what that negligence consisted? A. Slippery floor."

Judgment was entered in favor of plaintiff, and defendant appeals, assigning certain errors, which will be noted.

1. Defendant contends that its demurrer to plaintiff's evidence should have been sustained, on the theory that she had shown no negligence on the part of defendant. In support of this it makes an argument deduced from that part of the evidence which would indicate that there was nothing the matter with the floor, and that its condition had not been materially changed during the latter half of the year 1920 that it had been varnished in June and oiled in July and again in October, and swept every night with a sweeping compound, and that such treatment is the characteristic and proper way to care for an office floor in a business establishment. It argues also that the fact that plaintiff slipped and fell on the floor is no proof that the floor was defective or that the bank was negligent in maintaining it. It argues,...

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5 cases
  • Tebbs v. Alcoa Steamship Company, Civ. No. 164-1954.
    • United States
    • U.S. District Court — Virgin Islands
    • 1 Marzo 1956
    ...Railroad, 220 Mass. 560, 108 N.E. 500. See also Headington v. Central Bldg. Co., 137 Kan. 350, 20 P.2d 816; Phillips v. Commercial National Bank, 119 Kan. 339, 342-346, 239 P. 984 and Syl. par. 1. See, also, Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 P. 253; John Gerber Co. v. Smith......
  • Tebbs v. Alcoa S.S. Co., Civil No. 164-1954
    • United States
    • U.S. District Court — Virgin Islands
    • 1 Marzo 1956
    ...Railroad, 220 Mass. 560, 108 N.E. 500. See also Headington v. Central Bldg. Co., 137 Kan. 350, 20 P.2d 816; Phillips v. Commercial National Bank, 119 Kan. 339, 342-346, 239 Pac. 984 and syl-par. 1. See, also, Robinson v. F. W. Woolworth Co., 80 Mont. 431, 261 Pac. 253; John Gerber Co. v. Sm......
  • Headington v. Central Bldg. Co.
    • United States
    • Kansas Supreme Court
    • 8 Abril 1933
    ... ... taking the case from the jury. Phillips v. Commercial ... Nat'l Bank, 119 Kan. 339, 342-346, 239 P. 984 and ... ...
  • Hunter v. The Barnsdall Refining Company
    • United States
    • Kansas Supreme Court
    • 9 Junio 1928
    ... ... Appellee ... cites Phillips v. Commercial Nat'l Bank, 119 ... Kan. 339, 239 P. 984, and allied cases, ... ...
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