Reddy v. Joseph Garavelli, Inc.

• Decision Date: 02 March 1937
• Citation: 102 S.W.2d 734,232 Mo.App. 226
• Parties: WILMER REDDY, RESPONDENT, v. JOSEPH GARAVELLI, INCORPORATED, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

102 S.W.2d 734

232 Mo.App. 226

WILMER REDDY, RESPONDENT, v. JOSEPH GARAVELLI, INCORPORATED, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

March 2, 1937

Appeal from the Circuit Court of City of St. Louis.--Hon. Chas. B Williams, Judge.

REVERSED.

Judgment reversed.

Anderson Gilbert, Wolfort, Allen & Bierman for appellant.

(1) There was not sufficient evidence to submit the issue of defendant's negligence to the jury, and the demurrer should have been sustained. Plaintiff's evidence conclusively developed the fact that whatever dangerous condition, if any, existed on defendant's premises was as well known to plaintiff as it was to defendant, consequently there was no evidence establishing any breach of duty on the part of defendant. Vogt v. Wurmb, 318 Mo. 471, l. c 475, 476; Bennett v. Louisville & Nashville R. R. Co., 26 Law Ed., l. c. 236; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Goetz v. Hydraulic Press Brick Co., 320 Mo. 586; Cash v. Sonken-Galamba Co., 17 S.W.2d 927; Stein v. Battenfield Oil & Grease Co., 327 Mo. 804. (2) The giving of instruction No. 1 was error because there was no competent evidence in the case to submit the issue of plaintiff's lack of knowledge of the alleged dangerous condition of defendant's premises. See authorities cited under point 1. (3) A verdict for $ 15,000 under the evidence in this case is so grossly excessive as to indicate bias and prejudice on the part of the jury. Plaintiff's own physician testified that plaintiff did not have a bad knee injury and that a minor operation would give him a normal knee within three months. Osby v. Tarlton, 85 S.W.2d 27.

Jones, Hocker, Gladney & Jones, Web A. Welker and Arnot L. Sheppard for respondent.

The duty owed by an owner or occupier of premises to an invitee is the exercise by the former of ordinary care to make and keep his premises in a reasonably safe condition, or to warn the invitee if they are otherwise, absent knowledge thereof on the part of such invitee. Scott v. Kline's, Inc., 284 S.W. 831, 832; Cases cited in appellant's brief, Points and Authorities 1.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.--

This is an action for damages for alleged personal injuries to plaintiff. On the trial of the case a verdict and judgment resulted in favor of plaintiff for $ 15,000. Upon the trial court indicating its intention of granting a new trial unless plaintiff would remit $ 7500, because in its opinion the verdict was excessive, plaintiff made such remittitur and from the judgment for $ 7500 defendant in due course appeals.

Plaintiff Reddy, when injured, was in the employ of the Highland Dairy Farms Company, a corporation, which company and plaintiff had accepted the provisions of the Missouri Workmen's Compensation Act and Reddy had been granted and accepted the sum of $ 1223 in full settlement of his claim for compensation thereunder.

The present action is prosecuted by plaintiff for his own benefit as well as the benefit of the insurer, Travelrs' Insurance Company, and the employer, Highland Dairy Farms Company, as their interest may appear, in that said Highland Dairy Farms Company and the said Travelers' Insurance Company had become subrogated to the right of action which plaintiff had against defendant under section 3309, Revised Statutes of Missouri, 1929 (Mo. St. Ann., sec. 3309, p. 8244), a third party and the alleged wrongdoer, but had refused to join in this action as parties plaintiffs.

Plaintiff was an employee of the Highland Dairy Farms Company and it was his duty to make delivery of milk to defendant's cafe, and on June 27, 1932, in performance of his duty in delivering milk to the defendant, and while in the act of or attempting to use a stairway at the rear of the defendant's premises provided as a means of ingress and egress to and from the basement door of the premises, and while using said stairway, plaintiff slipped on the same, causing him to fall headlong down the stairs, causing him injury.

As to the negligence charged in the petition it is sufficient for the purposes of this opinion to state that plaintiff in his evidence relied upon the charge that defendant operated, in connection with its cafe, a suction fan which carried greaseladen air out of its kitchen, which was in the basement, and deposited it on the flight of steps which plaintiff was compelled to use in delivering milk for his employer, thereby rendering the steps slippery and dangerous.

Defendant's answer was a general denial and a plea of contributory negligence.

At the trial, upon the close of plaintiff's case, defendant offered a demurrer, which was overruled. The defendant stood upon its demurrer and offered no evidence.

In light of the disposition we make of this case it is necessary to advert only to the assignment of error that the trial court erred in refusing to give and read to the jury the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff's case on the ground that plaintiff's evidence conclusively developed the fact that whatever dangerous condition, if any, existed on defendant's premises was as well known to plaintiff as it was to defendant, and that consequently there was no evidence establishing any breach of duty on the part of defendant.

Plaintiff's evidence discloses that on the 29th day of June, 1932, he was employed by the Highland Farm Dairy Company as a route rider. A route rider is one who substitutes for regular delivery men on the days the regular men are off duty. On the day in question he was making a delivery at defendant's place of business located at the northwest corner of De Giverville and De Baliviere avenues in the city of St. Louis. He entered defendant's premises through a gate leading from the sidewalk to the areaway between two buildings and started down a stairway at the rear of the main building, which stairway led to the basement. He had negotiated from one to three steps of this stairway, which was constructed of concrete, when he slipped and fell head forward down the steps, because of grease on the steps. The plaintiff described the steps as being about three feet wide, with ordinary treads of from eight to ten inches and a riser of about six or seven inches. The total number of steps in the flight was from twelve to thirteen. Previous to the day of the accident plaintiff had been making delivers to Garavelli's over a period of from four to five years; these delivers were made on two days out of each week. On the days he made delivers he would call at Garavelli's from one to three times per day.

Plaintiff testified that he had slipped on these steps before, but had never been injured. Plaintiff testified that there was a suction fan located about halfway down the steps, and on the east side thereof, which fan drew off steam from the kitchen; that he called it grease because it was caked all over the blades of the fan, and he did not know of anything except grease that would stick on the blades of the fan. This fan was located behind the stoves in the kitchen which was located in the basement, and the purpose of the fan was to draw fumes from the basement.

With reference to plaintiff's knowledge of the condition of the steps in question we set out his own testimony relating thereto.

Direct examination.

"Q. Had you ever previous to that, noticed the condition of those steps? A. I slipped on those steps and fell down before, but I always was lucky enough that I sat down and went down.

"Q. Did you ever notice the condition of them previous to that, anything on them? Anything of that sort? A. Yes, I have noticed grease on the steps. I was always careful of them."

Cross-examination.

"Q. Now, then, you slipped on some grease you say? A. Yes, sir.

"Q. Did you see that grease? A. Yes, sir.

"Q. At that time? A. Well, it is almost invisible to the eye. I knew the grease was there. I had been making deliveries there so long. I have always expected it.

"Q. You knew it was there? A. The grease was always on those steps.

"Q. And you were expecting to fall? A. I was always extra careful on those steps.

"Q. The reason, now, you say you fell on grease this time was because you knew it had been there on other occasions? A. No, sir. I didn't say that.

"Q. You didn't see it this time, did you? A. After I slipped on it.

"Q. You didn't notice any foreign substance of any kind on these steps when you started down? A. Foreign substance?

"Q. Yes, grease or anything like that? A. At the time I started down them?

"Q. Yes? A. I didn't until my heel slipped.

"Q. Well, when your heel slipped, you went right on down them--you didn't see anything then, did you? A. Yes, I had time to see that. My heel slipped about four or six inches.

"Q. While your heel was slipping you saw the grease? A. Yes, sir.

"Q. Was that the same kind of grease you seen on them before? A. That grease was almost invisible. That fan sucks that grease out of there and it is just a mist over those steps.

"Q. But that is the same kind you had seen there before? A. Yes, sir.

. . . .

"Q. Whatever grease comes out of that fan goes on the fifth or sixth step, doesn't it. A. It goes all over all the steps. It goes all over the steps. It is as high as the top step.

"Q. And you knew that? You had seen those steps greasy clear to the top? A. Yes, sir.

"Q. Before you fell? A. Certainly. I never seen the grease on them that morning. You said did I see them greasy. I have seen them greasy to the top.

"Q. Before this happened, before you fell I mean, on days before you fell? A. Yes, sir, on days before I fell I have, yes sir. "Q. You mean days before that you had used the steps to deliver milk? A. The day...