Relahan v. F.W. Woolworth Co.

• Decision Date: 08 May 1937
• Docket Number: 33354.
• Citation: 145 Kan. 884,67 P.2d 538
• Parties: RELAHAN v. F. W. WOOLWORTH CO.
• Court: Kansas Supreme Court

67 P.2d 538

145 Kan. 884

RELAHAN v. F. W. WOOLWORTH CO.

No. 33354.

Supreme Court of Kansas

May 8, 1937

Syllabus by the Court.

Evidence held insufficient to support recovery against storekeeper for injuries to customer who slipped on stairway and fell although pieces of candy paper wrappings were found on stairway, in view of failure to show that wrappings were on step on which customer slipped, that storekeeper had knowledge of presence of such wrappings, or that wrappings had been present for sufficient length of time from which notice could be implied.

Possessor of property is not liable to business guest for bodily harm resulting from any dangerous condition on property, if guest knew of condition and realized risk involved therein.

1. Where plaintiff was injured by slipping and falling down a stairway in defendant's store and pieces of candy paper wrappings were found on the stairway; and where the proof did not show that the paper was on the step on which plaintiff slipped, and where it was not shown that the defendant had knowledge of the presence of such paper; and where it was not shown that the candy paper wrappings had been on the floor a sufficient length of time from which notice could be implied held, plaintiff has no cause of action.

2. A possessor of property is not liable to a business guest for bodily harm caused to such person from any dangerous condition thereon, if such person knew of the condition and realized the risk involved therein.

Appeal from District Court, Wyandotte County, First Division; Edward L. Fischer, Judge.

Action by Naomi Relahan against F. W. Woolworth Company. Judgment for plaintiff, and defendant appeals.

Reversed.

J. E McFadden and T. P. Palmer, both of Kansas City, and O. C Mosman, Clay C. Rogers, C. Jasper Bell, and Paul A. Buzard, all of Kansas City, Mo., for appellant.

David F. Carson and Charles R. Foerschler, both of Kansas City, for appellee.

ALLEN Justice.

This was an action for damages for personal injuries sustained by plaintiff in falling on a stairway in defendant's store. Judgment was for the plaintiff, and defendant appeals.

Plaintiff alleges in her petition that, intending to make some purchases, she entered defendant's store at 1109 Main street in Kansas City, Mo., and proceeded down an iron stairway from the first floor to the basement; that on the steps of the iron stairway there were numerous fragments of paper and other débris, among which were wrappers of large Hershey candy bars which were on sale in defendant's store; that said wrappings were of a dark brown color and composed of very slick paper; that while using due care in going down the stairway, her foot came in contact with and stepped on the papers and scattered débris and slick Hershey wrappings, which caused her to slip and fall, causing serious injuries.

As acts of negligence, plaintiff's petition states: "'Defendant, through its agents, servants and employees, who are unknown to this plaintiff, was careless and negligent in allowing and permitting the stairs in their store to become littered with trash, débris and other slick paper substances; in causing the steps to be unsafe and dangerous for public travel; in not warning plaintiff of the unsafe condition of the same."' The plaintiff testified that as she started to go down in the basement she observed a girl at a counter or table selling chocolate candy; that she started down the stairway and fell; that she stepped on something on the second step; that her foot went out from under her and she fell and did not know anything more; that she did not look to see if there was anything on her foot or heel. After she fell, plaintiff said she observed dark looking paper lying on the steps; that it looked like paper wrappings of candy. She further testified that there was no warning sign; that her foot "just seemed to go out from under me and I was so scared I cannot tell what happened after that. It seemed as though I stepped on something. There was something I stepped on, but I don't know what."

Plaintiff's granddaughter, Vera Ruhling, who accompanied the plaintiff down the stairs, stated that nothing attracted her attention until her grandmother fell. The following excerpt from the testimony of this witness is pertinent:

"Q. Did you look to see about the steps if there was anything on the steps? A. Why, yes. ***

"Q. By the Court: *** Just state what you saw at that time? A. There was paper on them.

"Q. What kind of paper? A. Some of it was candy wrappers.

"Q. What kind of candy? A. Hershey bar wrappers."

The further testimony of this witness on direct examination is important:

"Q. Had you been in the Woolworth store before your grandmother fell? A. Yes.

"Q. Have you been there frequently? A. Well, yes.

"Q. How frequently? A. Oh, may be once a week or something like that.

"Q. During all of these visits immediately before, say within a month or two before your grandmother fell, will you describe what you saw there with reference to that stairway?

"Attorney for defendant: I object to that unless they attempt to show whatever condition she saw at that time remained and was the same on the day of the accident?

"The Court: Overruled.

"Attorney for defendant: It is immaterial and prejudicial.

"The Court: You may answer. I have overruled it. Answer.

"A. I was just thinking. I have seen paper on the steps before.

"Q. What did you observe about these papers that you have denominated as coverings for chocolate bars, at any time in the several weeks? You say you were there from that time once a week, before that time. What had you observed with reference to that particular kind of paper there on that stairway, if you observed anything?

"Attorney for defendant: Objected to as leading and suggestive; and unless it is about the particular thing he wants her to say. And for all the reasons given on the former question.

"The Court: Overruled.

"A. Well, I cannot say that I saw those paper wrappers there. I noticed the paper, but I cannot say I noticed each separate piece of paper and could tell what kind it was."

This witness further testified that after her grandmother fell she looked to see if there was anything which could have made her fall; that she then saw the paper on the steps; that it was just paper, and some of it was candy bar wrappers; was a dark reddish brown, a wrapper similar to the Hershey bar wrappers. She stated there was a girl at the top of the stairs against the front partition, selling candy; that chocolate bars or candy was on the counter, which was at the head or side of the stairway. She said the chocolate wrappers were either waxed, oiled, or glazed.

The defendant's evidence was to the effect that it employed a janitor and porter, whose duty consisted of sweeping...