Rush v. Townsend & Wall Co.

• Decision Date: 09 January 1961
• Docket Number: No. 1,No. 47991,47991,1
• Citation: 343 S.W.2d 44
• Parties: Pearl RUSH, Plaintiff-Respondent, v. TOWNSEND AND WALL COMPANY, Defendant-Appellant
• Court: Missouri Supreme Court

Page 44

343 S.W.2d 44

Pearl RUSH, Plaintiff-Respondent, v. TOWNSEND AND WALL COMPANY, Defendant-Appellant.

No. 47991.

Supreme Court of Missouri, Division No. 1.

Jan. 9, 1961.

Rehearing Denied Feb. 13, 1961.

W. J. Sherwood and W. H. Utz, Jr., of Smith, Sherwood, Utz & Litvak, St. Joseph, for appellant.

Downs & Pierce, St. Joseph, for respondent.

HOUSER, Commissioner.

This is a suit for damages for personal injuries sustained by Pearl Rush when she fell on the stairs in the Sixth Street vestibule of the Townsend and Wall department store in St. Joseph. A trial jury returned a verdict for plaintiff for $12,500. On December 7, 1959 defendant filed a notice of appeal from the ensuing judgment.

Plaintiff fell as she started to descend these stairs:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiff's theory of recovery was that defendant failed to exercise ordinary care to keep the landing and stairway in a reasonably safe condition for the use of its customers and business invitees, including plaintiff; that it negligently maintained them in an unsafe condition in that the brass handrail, marble landing and tread of the stairway were slick, and the landing and stairway were dimly and inadequately lighted so that she could not see a child or children thereon and avoid being brushed against by them, so that, while starting to step from the landing to the first step of the stairway and as her left hand was holding the brass rail, she was brushed against by a child or children, causing her hand to slip on the slick brass rail which she could not hold onto, and her foot to slip on the slick landing and stairway, whereby she fell.

Plaintiff, a 65-year-old lady, had lived in St. Joseph all her life. A customer of appellant, she had been in the store many times and had been in and out of the Sixth Street entrance many times. After making a purchase at appellant's store during the Christmas shopping season, plaintiff fell on the steps in appellant's vestibule on December 21, 1957 between 4:00 and 4:30 p. m. Crowds of children were downtown to participate in the annual Mayor's Christmas Party. As she was leaving the store plaintiff opened one of the glass doors which lead from the store to the vestibule and walked from the door to the top of the steps 'alright.' Storm doors separate the vestibule from the public sidewalk. The platform and stairsteps in the vestibule are made of Tennessee marble. She had walked across that marble and down those steps many times and 'had always gotten across them alright' by being 'ordinarily careful.' As she came out of the store the vestibule was 'very dimly lit' in comparison with the lights in the store, which were 'bright and gay.' Immediately after she entered the vestibule it was so dim that she 'didn't see anything'--'couldn't visualize the steps or anybody in the vestibule,'--'couldn't see the children,'--'didn't see the children,'--'couldn't discern anyone or anything.' Her eyes contract and expand in a normal manner to accommodate light. It takes 'but a minute' or 'not quite a minute' for her eyes to adjust. Plaintiff's judgment as to the length of a minute was timed, by experiment in the courtroom, at five seconds. Although plaintiff's eyes were not 'completely adjusted,' nevertheless, after standing there 'a minute' and letting her eyes 'focus to the darkness of the vestibule,' she saw the steps. She saw the brass handrail. She saw the steps and railing and knew that the steps and railing were there 'because [she] had gone in and out of the store many times.' She knew that the steps were marble, and she 'saw the marble steps were slippery.' She put her gloves and pocketbook in her right hand, and started down the steps. She took hold of the brass handrail with her left hand. As she took hold of the brass rail to step down she started to put her right foot forward to step. Something brushed against her left side, jostled her, and startled her. It was 'at least two' small children who 'apparently' crawled under the rail and came up under her left arm. She had not experienced any difficulty starting down the steps until the children jostled her, but when the children brushed against her she tried to catch herself. The 'slick rail' was 'slippery to [her] bare hand.' The handrail was 'so slippery that [her] hand slipped,'--it was 'so slick,'--she 'couldn't maintain [her] hold on it,'--she 'couldn't hold onto it tight enough to save [herself].' Inconsistently, plaintiff also testified that when she fell, and after she had fallen, she still 'had ahold of the rail,' 'trying to catch [herself].' When the children jostled her, her hand 'slipped down the rail.' At the same time her hand 'slipped on the slick rail' her foot slipped on the marble step, which was slick. She lost her balance, her foot folded under her and she fell on her leg, breaking it. Mr. Bauer, the store manager, and Mr. Wall, came to her assistance after she fell. Plaintiff saw them, recognized them and testified that 'if anyone stood in front of you, you could see them and see who they were.' She knew that other people were moving in and out of the vestibule. She stated that if the rail hadn't been slippery she could have caught herself and kept from slipping. The marble steps were slick, but plaintiff did not know whether there was any slippery substance on the steps. As far as she knew there was no foreign substance on the steps. There was no evidence that there was any slippery substance or foreign object on the steps. Plaintiff, who had seen marble used for steps and entrance ways in public buildings, 'imagined' that it is used extensively and conceded that she had walked over marble floors in banks and public buildings 'all over town.'

Appellant's first point is that the court erred in refusing to sustain defendant's motion for a directed verdict at the close of all the evidence. Appellant argues that the vestibule was adequately illuminated for persons exercising ordinary care for their own safety; that the landing and steps, constructed of Tennessee marble, a material commonly used for such purposes in stores and public buildings, were not worn but were in good condition, well maintained, and of adequate and customary design, free of foreign substance; that the stairway was divided by a brass handrail of usual and ordinary construction, clean and free of any foreign substance; that there was no claim of structural defect in, or foreign substance on, the landing, stair or handrail, and no evidence that the children who jostled plaintiff were in any way subject to the supervision or control of the defendant, or that defendant had any reason to know or anticipate that they were on the premises or that they might come up under the handrail, brush against plaintiff and cause her to fall. Appellant further argues that because of plaintiff's familiarity with the landing, steps and handrail, generally and particularly on the occasion in question, the condition was open and obvious and as well known to plaintiff as it was to defendant. Accordingly, appellant contends that no negligence on defendant's part was shown; that the proximate cause of plaintiff's fall was the act of the children in brushing against and jostling plaintiff, for which defendant is not responsible; and that a storekeeper is not liable to an invitee for injuries resulting from an open and obvious condition of the premises as well known to the plaintiff as to the defendant.

Respondent disputes appellant's argument that the proximate cause of plaintiff's fall was the act of the children in brushing against her. Respondent contends that the proximate cause was inadequate and dim lighting on the stairway preventing plaintiff from seeing the children and avoiding them, as a result of which the children brushed against and jostled her, causing her to lose her balance. Respondent attempts to complete the chain of causation by coupling the inadequate lighting with the slick condition of the handrail and step, contending that plaintiff was unable to recover her equilibrium ('catch' herself) by the use of the slick handrail and that the fall was consummated by the slippage of plaintiff's foot on the slick step.

Plaintiff's inability to see the children because of inadequate and dim light, and her ability to have avoided the brush with and jostling by them if she could have seem them, were essential elements of plaintiff's claim for relief, and the burden of proving these facts was upon plaintiff. The keystone in the arch is the inability of plaintiff to see the children. The chief difficulty with plaintiff's case is that by her own testimony plaintiff refuted this basic fact. It is true that plaintiff testified that immediately after she emerged from the brightly lit store she could not see the children, the steps, anyone or anything in the vestibule. The question, however, is not what plaintiff could see immediately after she came out of the store. The crucial question is what plaintiff could see as she started to use the steps and was about to encounter the children. Plaintiff did not testify that as she started to use the steps she could not see the children, and it is an inescapable inference from other testimony of plaintiff that she could have seen the children at that time, if they had been in the range of her vision, or if she had been looking. Her other testimony indicates that her ability to see changed considerably between the time she emerged from the store and the time she started to use the steps. There was an important time lapse. Plaintiff testified that immediately after she came out of the brightly lit store she could not 'visualize the steps or anybody in the vestibule, but I did see them after standing there a minute and letting my eyes focus to the darkness of the vestibule.' (Emphasis ours.) Plaintiff later modified this statement by saying that her eyes were not 'completely adjusted,' but the...