Rosebrough v. Montgomery Ward & Co.

• Decision Date: 24 November 1948
• Docket Number: No. 6775.,6775.
• Citation: Rosebrough v. Montgomery Ward & Co., 215 S.W.2d 295 (Mo. App. 1948)
• Parties: ROSEBROUGH v. MONTGOMERY WARD & CO., Inc.
• Court: Missouri Court of Appeals

215 S.W.2d 295

ROSEBROUGH v.MONTGOMERY WARD & CO., Inc.

No. 6775.

Springfield Court of Appeals. Missouri.

November 24, 1948.

Rehearing Denied December 12, 1948.

Appeal from Circuit Court, Division No. 1, Jasper County; Walter E. Bailey, Judge.

"Not to be Published in State Reports".

Action by Shelby Rosebrough against Montgomery Ward & Co., Inc., a corporation, and W. R. Harrison to recover for injuries sustained by plaintiff in fall on stairway of the corporation's store.From a judgment in favor of the plaintiff, the corporation appeals.

Judgment affirmed.

Paul E. Bradley and George W. Wise, both of Joplin, for appellant.

Burden & Shortridge, of Joplin, for respondent.

McDOWELL, Judge.

This is an action for personal injuries sustained by plaintiff in slipping and falling on the stairway of defendant's, Montgomery Ward & Company, Inc., store.The action was filed in the Circuit Court of Jasper County, Missouri, against Montgomery Ward & Company and W. R. Harrison, manager of the store.The cause was tried before a jury and a verdict returned for plaintiff and against defendant, Montgomery Ward & Company, for $1100.00, and against plaintiff and in favor of defendant, W. R. Harrison.Judgment was rendered on the verdict and defendant, Montgomery Ward & Company, perfected its appeal to this court.

Plaintiff bases his cause of action upon the negligence of the defendant, Montgomery Ward & Company, Inc., in failing to provide its customers with a reasonably safe condition of its premises in that it suffered and permitted its stairway leading from the main floor of the store to the basement thereof to remain in a dangerous and slippery condition, caused by oil being spilled thereon, which oiled condition made the steps unsafe and dangerous to the plaintiff going upon the property.Plaintiff pleaded the dangerous condition of the stairs was known to the defendant at the time and not to the plaintiff; that plaintiff slipped upon the oiled stairs and was injured, which injuries were caused as a direct and proximate result of defendant's negligence.The defendant answered that the condition of the steps was obvious and apparent and, if plaintiff fell, it was due to his own negligence in not observing where he was going and that plaintiff was warned by the defendant of the dangerous condition.

There is but one issue relied upon by appellant for reversal in this case and that is that the lower court erred in overruling appellant's motion for a directed verdict at the close of all the evidence and also in overruling appellant's motion to set aside the verdict and judgment because the dangerous condition of the steps was open and obvious and, if plaintiff fell, it was due to his own negligence in not seeing and observing the dangerous condition.

We here state such facts, from the evidence, as are necessary for the determination of the issue raised.On May 3rd, 1947, defendant, Montgomery Ward & Company, Inc., operated a retail store in Joplin, Missouri, of which W. R. Harrison was manager.The store contained a flight of wooden steps descending from the main floor to the basement in a westerly direction.The stairs were about thirty feet long and eight feet wide, the top being to the east and the bottom to the west.There were had rails on the north and south sides of the stairs and newel posts at the foot.The stair steps were of dark color — one of defendant's witnesses said brown.There was a large 200 watt light in a frosted globe over the steps.

Shortly before plaintiff's injuries, some customer purchased a gallon jug of turpentine and a gallon jug of linseed oil and in going up the steps from the basement, some six or seven steps from the bottom, hit the jugs together and broke the jug containing the linseed oil, spilling it on the steps.It seems that the oil was spilled on the south side but it ran across to the north side and down the steps.The testimony does not show whether it reached the floor or not, but the oil spread over most of the steps from the sixth or seventh to the bottom.The office was notified by one of the clerks that the oil had been spilled on the steps and immediately thereafter a Negro porter was sent to mop up and clean the steps.The porter testified that he went immediately and was there in two or three minutes after he was called.Defendant's witnesses testified that they warned customers not to go up or come down the steps, telling them they were slippery and dangerous.The evidence showed that the linseed oil spilled was a liquid of light brownish color.One witnesses said it was orange brown and made the steps wet.One of defendant's witnesses said that it made the steps look like the liquid they used in cleaning the steps.According to the testimony the porter had cleaned one or two of the steps before plaintiff was injured.About five o'clock in the afternoon of May 3rd, 1947, the plaintiff, Shelby Rosebrough, together with his wife, one William Ford, a brother-in-law and Ford's wife, came to the defendant's store to do some shopping.The evidence showed they entered the store on the main floor, went directly to the head of the stairs leading to the basement, and there the women separated and went back into the dry goods department and the men proceeded to go down the stairway to the basement.We here set out the questions to the plaintiff and his answers concerning what took place in the store:

"Q.Now, after you arrived at the store what happened?A.Well, all four went into the store together, but my wife and sister-in-law intended to do some shopping up in the dry goods department and they left us at the head of the stairs, and my brother-in-law and I went down to the basement; he started walking along, he was on the right of me and he started down the stairs ahead of me, and I followed right in behind him on the north side of the stairway.

"Q.Now, what was your position relative to that of your brother-in-law?A.I don't remember until we hit the head of the stairs, but then he went right ahead of me down the north railing.

"Q.Now, what did you do with regard to the hand rail?A.I had this hand running down the hand rail.(Indicating).

"Q.Now, before you got to the foot of the stairs did anything unusual happen to you?A.Why, I fell before I got to the foot of the stairs.

"Q.Now, whereabouts did you fall with reference to the bottom of the steps?A.It must have been the third or fourth step.

"Q.How did you happen to fall?A.I slipped in something that looked like oil.

"Q.Did you see it before you stepped in it?A.No, sir, I did not.

"Q.Did anybody tell you not to go down the steps, there was oil there?A.No, sir.

"Q.Did you see anything at the foot of the stairs?A.Not as I was going down.

"Q.Now, Mr. Rosebrough, as you were going down the steps with your hand on the rail, where were you looking?A.Oh, I was glancing back over into the store, and just looking around, like I would going down.

"Q.Youmean you were looking to the side and also in front of you?A.Yes, sir.

"Q.Now, after your feet slipped out from under you, what did you do?A.Well, I swung this other arm around and grabbed this post there.(Indicating).

"Q.Now, where did your feet go?A.They were back over near here when I stopped.

"Q.It threw the strain on your back did it not, your arms and your back?A.Yes, sir.

"Q.Now you had not seen the oil on the steps prior to that time?A.No, sir.

"Q.Now, after the accident, did you see the oil?A.Yes, sir, I seen the oil.

"Q.Tellthe jury about where the bulk of the oil was?A.Well, I don't remember exactly what steps it was on.

"Q.Was it on more than one step?A.Yes, it was.

"Q.Did it look like a considerable quantity of oil after you observed it?A.There was quite a bit of oil.

"Q.Do you know whether or not it run down to the floor?A.No, I don't know whether it had or not, but I don't think it had.

"Q.Did anybody say anything to you at the time?A.No, sir.

"Q.Did you hear anybody say anything else?A.Yes, I did.

"Q.Who did you hear say something else?A.Well, there was a colored boy, I suppose he was a janitor or something there.

"Q.Where was the colored boy the first time you saw him?A.He was right over in the corner at the bottom of the steps.

"Q.Was he on the steps?A.No, sir.

"Q.Closeto the wall?A.Yes, sir.

"Q.Now, what was the colored boy doing when you first saw him?A.When I first saw him he was standing there with a mop in his hand; I presume it was a mop, it was long-handled, like would be on a broom or mop.

"Q.Did he say anything to you?A.No, sir, he did not.

"Q.Did he catch hold of you?A.No, sir.

"Q.Now, what did he say, — what did you hear him say for the first time?A.I can't remember the exact words, but it was to the effect, `I told you to close those stairs.'

"Q.Now, before you were injured did anybody tell you not to use the steps?A.No, sir, they did not."

On cross-examination the following questions and answers were given by the plaintiff:

"Q.And you and your brother-in-law went to the head of the stairs to go down the stairs?A.Yes, sir.

"Q.Who went down first, or did you go down together?A.My brother-in-law went down right ahead of me.

"Q.Did you watch him all the way down?A.No.

"Q.Did he get down to the bottom of the stairs before you did?A.Yes, sir.

"Q.Where were you when he got to the bottom of the steps?A.I don't know exactly.

"Q.Which side of the stairs did you start to go down on?A.Right hand side.

"Q.That would be the north side?A.Yes, sir.

"Q.That is what I am trying to get at.How far ahead of you was he?A.Well, possibly three or four steps when we started.

"Q.Now, as you were coming down the stairs, which way were you looking?A.Well, I was glancing around from one side to the other and looking down the stairs.

"Q.When you got down below the floor of the first floor, so you could see...