Rearden v. F. W. Woolworth Co.

• Decision Date: 07 October 1941
• Docket Number: No. 25811.,25811.
• Citation: 154 S.W.2d 373
• Parties: REARDEN v. F. W. WOOLWORTH CO.
• Court: Missouri Court of Appeals

154 S.W.2d 373

REARDEN v. F. W. WOOLWORTH CO.

No. 25811.

St. Louis Court of Appeals. Missouri.

October 7, 1941.

Rehearing Denied October 24, 1941.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Suit by Marie Rearden against the F. W. Woolworth Company to recover for injuries sustained in a fall upon the floor of the defendant's store. Judgment for the plaintiff, and the defendant appeals.

Judgment affirmed.

Jones, Hocker, Gladney & Grand and Lon Hocker, Jr., all of St. Louis, for appellant.

Grattendick & Horn, Alfred L. Grattendick, and Kenneth W. Grattendick, all of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries brought by respondent as plaintiff against appellant as defendant. Upon a trial in the circuit court before the court and jury, there was a verdict and judgment in favor of plaintiff and against defendant in the sum of $1,250. After an unavailing motion for a new trial, defendant duly appealed to this court.

Plaintiff's petition alleged that defendant was engaged in the retail merchandise business in the City of St. Louis, Missouri; that it owned, maintained and operated a retail merchandise store known as a five and ten cent store located at 4522 Easton Avenue in said city; that, on February 20, 1939, while plaintiff was a customer in defendant's store for the purpose of inspecting merchandise kept for sale by defendant and making a purchase from defendant, she slipped and fell upon the floor and was injured.

No question is raised on this appeal as to the nature or extent of plaintiff's injuries so it is unnecessary to refer to them further.

The negligence of defendant assigned in plaintiff's petition was that the part of the floor of defendant's store where plaintiff fell was covered with an oleaginous substance consisting of oil, dust and dirt which caused it, particularly where plaintiff fell, to be greasy, oily, slick and slippery and not reasonably safe for customers walking thereon, which condition, plaintiff alleged, existed for a long period of time prior to the time plaintiff fell and which defendant knew or should have known within time thereafter to have remedied the same and thereby made said floor reasonably safe for its customers; that defendant carelessly and negligently permitted chocolate, candies and popcorn dropped by its customers and patrons to remain on the floor of said premises for long periods of time, and thereby created a dangerous condition in that said chocolate, candies and popcorn adhered to said floor creating impediments to the reasonable safety of customers and patrons using the same.

Plaintiff further alleged in her petition that, while she was walking along the center aisle of the store near a display counter, she "did step with one foot upon a sticky substance carelessly and negligently permitted by defendant to be and remain for a long period of time on the floor * * * where plaintiff was then walking, and which said floor was carelessly and negligently, and for a long period of time, permitted by defendant to be covered with an oleaginous substance consisting of oil, dust and dirt, and that plaintiff's progress was thereby suddenly and violently halted, and that plaintiff's other foot slipped on the aforementioned oleaginous substance upon the floor of said premises, which caused said floor to be greasy, oily, slick and slippery, and that as a direct result of the carelessness and negligence of the defendant * * * plaintiff was caused to be thrown down and to fall violently upon the floor * * *."

Defendant's answer contained a general denial coupled with a plea of contributory negligence, charging that plaintiff's injuries were caused or contributed to by her own negligence in failing to see the floor on which she was walking.

Defendant contends that the trial court erred in refusing to give its requested instruction in the nature of a demurrer to the evidence offered at the close of the case, and argues that there was no evidence tending to prove scienter as to the alleged conditions of the floor causing plaintiff's fall.

Plaintiff testified that on Monday, February 20, 1939, she entered defendant's store a little before noon to purchase some stationery and dress material; that, after she had entered the center aisle of the store and had taken about two steps therein, she "slipped". She further testified:

"Q. Then what happened? A. Well, I just kind of slipped, or was like that, just for a minute, and then this foot went to the side.

"Q. Which foot? A. My left foot. * * *

"Q. What happened to your right foot, if anything? A. It was under me when I fell."

She further testified that she hardly had time to think; that she kind of balanced herself and as she did her left foot went from under her. She was asked what happened right after she made the two steps in the aisle, and answered:

"Well, that is whenever I came to that halt.

"Q. What do you mean by coming to a halt, Mrs. Rearden? A. Well, I just felt that I was stuck some way or something, and just before I had time to think hardly, why this foot went from under me."

She further testified that as the manager of the store helped her to arise after she had fallen, she noticed a dark substance on the floor about three inches long and about half an inch wide; that it was of a dark color; that there was a mark on the floor of the aisle where she fell about two feet long running in the direction in which her left foot had slipped; that after the fall she noticed her stockings were greasy that the surface of the floor at the place where she fell had a greasy, oily scum like a mixture of dirt and oil; that the greasy, oily scum was all around on the floor where she had fallen and extended up to the edge of the counter where it was a little lighter; that the floor was an oiled wooden floor; that her wrist was broken in the fall; that when the manager was assisting her to arise from the floor, he said: "Tsk, tsk, tsk, something is on the floor." Plaintiff further testified that she did not notice anything on the floor or anything wrong with the floor until after she had fallen and was picked up; that the only thing she saw on the floor was "a little black object about three inches long and about a half inch wide. I do not know what kind of a thing it was. I don't know what it was made of. * * * All I can say is that it was dark in color, about three inches long and a half an inch wide. It was approximately two feet ahead of me when I was picked up."

Cora Walker testified, as a witness for plaintiff, that she was in defendant's store shortly after one o'clock in the afternoon of February 18, 1939, which was on Saturday and two days preceding the day on which plaintiff fell in the store; that at the time the witness was there, the floor of the store was "oily, greasy, dust — there was dust and dirt, and it was scummy, dark." The witness further testified:

"Q. Now, did you have occasion to walk through the center aisle of that store on that day? A. Yes, I did.

"Q. And can you tell us what the condition of the floor was in the center aisle? A. Well, it was the same; it was the same all over.

"Q. Now, then, was there anything else that you noticed on that floor, other than this oily — A. There was spots. * * * Big spots of dark, real dark."

She further testified that "the center aisle floor was like the others; it was dark and scummy, greasy." The witness further testified that there was an oily scum in the aisles and all over the center of the aisles throughout the entire store; that it was a little slippery; that she had slipped on it a time or two; that the oily scum condition was noticeable; that in addition to the oily scum, there was candy on the floor close to the candy counter; that the black spots she referred to were in the middle of the aisle and were raised up above the level of the floor, but that she did not know what they consisted of — they were dark black looking; that she stepped on some of them and they were gummy like; that they were round in shape about as big as a quarter, some a little larger and some smaller.

W. L. Hammond, manager of defendant's store, testified that he often found candy on the floor of the store; that candy was sold at the store to customers; that sometimes candy would stick to the floor; that it was a practice of the store to have his assistant, Arthur Klaus, to scrape such spots from the floor of the store at night with a putty knife. Defendant introduced further testimony showing that the floors of the store had not been oiled since 1929; that after 1929 the floors had been swept with a sweeping compound each night, and in addition thereto any gum or candy stuck to the floor would be removed with a putty knife; that the witness assisted plaintiff to arise from the floor after she had fallen; that he looked at the floor and found it to be in normal condition; that it had neither oil, scum, dirt, grease nor any dark object in the vicinity of the place where plaintiff fell, and that there was no long mark on the floor such as plaintiff had described in her testimony; that the floor was swept with a sweeping compound every day by Arthur Klaus, and that during the day he, the witness, made regular inspections to see that the floor was kept clear and that paper was picked up whenever it was found on the floor.

Arthur Klaus testified, as a witness for defendant, that he was employed as assistant manager in defendant's store at the time plaintiff fell therein; that he swept the floor each evening with a compound, and that two or three days a week h...