Pollard v. Hill

• Decision Date: 18 November 1969
• Docket Number: No. 33379,33379
• Citation: 447 S.W.2d 777
• Parties: Norma POLLARD, Plaintiff-Appellant, v. Danny HILL, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 777

447 S.W.2d 777

Norma POLLARD, Plaintiff-Appellant, v. Danny HILL, Defendant-Respondent.

No. 33379.

St. Louis Court of Appeals, Missouri.

Nov. 18, 1969.

James F. Koester, St. Louis, David G. Dempsey, Clayton, for plaintiff-appellant.

Evans & Dixon, Henry D. Menghini, St. Louis, for defendant-respondent.

BRADY, Judge.

Plaintiff received a jury verdict in the sum of $4,000.00 for injuries sustained as a result of tripping over a cardboard box full of anti-freeze while a business invitee of defendant who operated a service station. In addition to denial of the allegations of the petition, defendant's answer raised the issue of plaintiff's contributory negligence. The trial court sustained defendant's after-trial motion for judgment in accordance with his motion for directed verdict and entered judgment in favor of defendant on the grounds he was not negligent inasmuch as the box was an open and obvious condition and that plaintiff was contributorially negligent as a matter of law in failing to observe the box prior to her fall. Plaintiff appeals.

It should first be stated that this is not a case involving insufficient lighting as plaintiff herself testified there was adequate lighting to enable her to see. It is also uncontroverted the box over which she tripped was of a different color and contrasted sharply from the color of the floor on which it sat and the wall against which it was placed.

Plaintiff's testimony was that she had stopped at this service station between 3:00 and 4:00 in the afternoon in order to purchase some soda and cigarettes. Defendant sold a variety of merchandise in addition to gasoline and plaintiff, who had stopped there off and on for about a year, was familiar with this fact and familiar with defendant's habit of displaying merchandise inside; but, except for 'Soda cases and oil and things liek that', she did not remember displays being placed outside the office. On this particular occasion plaintiff parked her automobile to the left (as one faces it) side of the building. The door is approximately in the middle of the building. Where she parked was also to the left of the soda machine. She got out of the car, walked toward the soda machine, hesitated there to look at her change, and then went on to the door and into the building to get change and cigarettes. As she did so she walked between the front wall of the building and a line of displays, and toward the box. Along the front wall of the building there was a line of soda cases but she did not remember if these soda cases were 'anywhere close to that box or close to the door'. She testified that if they were not then the soda cases wouldn't have prevented her from seeing the box. The door was hinged on the left and opens into the building. Since it was hinged on the left she walked over to the right side of the door to push on it so that it would open. After securing her change and cigarettes she prepared to leave and upon doing so tripped and fell over a cardboard box containing gallon cans of antifreeze which had been placed there by defendant in the morning of that same day. This box was placed immediately to the right of the door as she faced it to leave. Its east side was against the front wall except for the four to six inches protruding into the doorway, and its south side faced the pathway covered with carpet or some similar material leading to the door. She stated the reason she did not walk immediately next to the box to get to the door was because she entered the door closer to its right side. There is no evidence as to how long she was in the building. As she left she was carrying her cigarettes and change in her left hand. She opened the door part way with her right hand--it opened inwardly--and put her back against it to keep the automatic closing device from closing the door thus pushing her forward. Her testimony was she was familiar with this self-closing device and on that occasion the door closer did not operate with any more difficulty or force than on any prior day. Her further testimony was that she was looking straight out in front of her and was watching where she was walking. She was being careful because she knew there were 'things out there on the pad' although she didn't know specifically of the box. She knew she was going to make a right turn upon coming out of the door in order to go back to the soda machine. She took 'a couple steps' (in another place she testified to two steps) inside the building and then upon taking her first step out of the building struck the box with her right leg and fell. She struck the south side of the box, that side to her right as she came out the doorway. She did not see the box at any time before her fall but it was clearly visible to her afterwards. Plaintiff's counsel developed testimony showing the door had a panel which extended a foot and a half from the bottom toward the top before the glass portion began. According to her testimony the box was six to eight inches high and so she could not see the box while she was in the building and the door was closed, but there was nothing to prevent her from seeing the box after she opened the door.

It is too well settled to require supporting citation of authority that the trial court was jusified in sustaining defendant's after-trial motion for judgment in accordance with his motion for directed verdict only if reasonable minds could not draw different conclusions as to defendant's negligence or plaintiff's contributory negligence from the facts of this case. Otherwise the jury's verdict should stand and the trial court must be reversed.

Taken in the light most favorable to plaintiff, the evidence establishes the following circumstances: Plaintiff walked from the soda machines toward the box. If there had been soda cases placed close to the box they would have prevented her from seeing it, but her testimony was she did not remember any soda cases being so located. She entered the very door to the right of which the box was placed and into the doorway in which the box extended four to six inches. She thus walked past the west side of the box she did not see, turned to her left at its southwest corner and walked past the south side of this box, again without seeing it, and then entered the door. During all of this time so far as this record discloses the box was plainly visible. When she left she took two steps and with her third step tripped over the box which she had passed entering the building struking it upon its south side, the very side she walked by when she entered the door and the side which protruded four to six inches into the doorway.

While the trial court ruled that defendant was not neeligent and plaintiff was contributorially negligent as a matter of law, it is obviously unnecessary to rule upon both issues. If either ruling is sustained then the trial court's action must be affirmed. We will therefore take plaintiff's case in its strongest position and assume, arguendo, defendant was negligent. We do so for the reason that, as will appear herein, we have determined plaintiff was guilty of contributory negligence as a matter of law.

Plaintiff contends she was 'momentarily distracted' by displays in and out of the building and thus was not contributorially negligent. The weakness of this argument is that the evidence simply does not establish any such diversion or distraction. To the contrary, plaintiff's own evidence was that she was being careful and she was watching where she was walking. There is no evidence that she was distracted by any of the displays or was even looking at them. Plainti...