Savona v. May Department Stores Co.

• Decision Date: 08 May 1934
• Docket Number: No. 22830.,22830.
• Citation: 71 S.W.2d 157
• Parties: SAVONA v. MAY DEPARTMENT STORES CO.
• Court: Missouri Court of Appeals

71 S.W.2d 157

SAVONA v. MAY DEPARTMENT STORES CO.

No. 22830.

St. Louis Court of Appeals. Missouri.

May 8, 1934.

Rehearing Denied May 22, 1934.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be reported in State Reports."

Action by Antonietta Savona against the May Department Stores Company. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

Mason & Flynn, of St. Louis, for appellant.

Joseph N. Hassett and Ernest E. Baker, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an appeal by plaintiff from a judgment of nonsuit which was entered against her in her action for damages for personal injuries sustained by her on December 19, 1930, when she slipped and fell on a stairway in defendant's department store in the city of St. Louis.

The accident happened about 9:30 in the morning, in what is commonly known as the Famous-Barr Store. The stairway upon which plaintiff fell is about three feet in width, and leads from the first floor down into the basement. It consists of a flight of fifteen or sixteen steps; each step having a corrugated metal strip attached lengthwise at its edge to promote safety in its use. On either side of the stairway is a handrail which is fastened to the wall at a convenient height; and attached to the ceiling over the stairway is an electric light which concededly gives sufficient light to enable one to observe the condition of the stairway.

Plaintiff was proceeding down the stairway, carrying an empty shopping bag in her left hand; and she admits that she at no time took hold of the handrail as she went down the steps. This latter fact is stressed by defendant upon the issue of contributory negligence, as will hereinafter appear. As plaintiff started down the stairway, she observed that there was a very little water on the first step, and she also took note of the fact that each succeeding step appeared slightly wetter than the one before. On the seventh or eighth step she fell, the evidence seeming to indicate that she slipped upon the step; and, being unable to catch herself, she fell down the stairway to the landing at the bottom of the stairs.

An unidentified man dressed in a white uniform, who seemingly was an employee in the store, helped plaintiff to her feet, whence she was taken up stairs to the store's private hospital for first-aid treatment, after which she was sent to her home in a taxi-cab.

Immediately after her fall plaintiff looked at her hand, and saw that it was wet with soapy water. Other testimony disclosed that the day in question was clear, with the streets and sidewalks dry, such showing, along with the showing that the water on the steps was soapy, being relied upon by plaintiff as the basis for the inference that the water had been put upon the stairway by defendant's employees in cleaning the same.

Literally, the negligence charged in the petition was the act of defendant in mopping and wetting the stairway during business hours, when customers, including plaintiff, were invited to use the same, and when defendant knew, or should have known, that the wet and slippery condition of the stairway would be dangerous to persons using the same, and likely to cause them to slip and fall and be injured. Actually the gravamen of the charge, as we understand it, was the negligence of defendant in permitting the steps to be wet and slippery and not reasonably safe for use, regardless of whether the water had been put upon the stairway during or prior to business hours.

The answer of defendant was a general denial.

The sole question for our determination is whether or not the demurrer to plaintiff's case was properly sustained. Unfortunately, upon the bare record in the case, there is no way for us to ascertain the precise theory upon which the court felt under legal compulsion to hold that plaintiff was not entitled to have her case submitted to the jury. It may conceivably, though improbably, have been upon the ground that there was no proof of defendant's actionable negligence, or more likely upon the ground that plaintiff's own evidence conclusively established the fact that she was guilty of contributory negligence as a matter of law. At least counsel give but scant attention to the first possibility in their briefs, instead devoting almost their entire argument to the second; and we shall therefore consider the case in like manner, treating the issue of contributory...