Schwartz v. S. S. Kresge Co.

• Decision Date: 04 December 1944
• Citation: 185 S.W.2d 37,238 Mo.App. 1165
• Parties: Rhea Schwartz, v. S. S. Kresge Company, a Corporation, and Daniel K. Patrick
• Court: Kansas Court of Appeals

185 S.W.2d 37

238 Mo.App. 1165

Rhea Schwartz, v. S. S. Kresge Company, a Corporation, and Daniel K. Patrick

Court of Appeals of Missouri, Kansas City

December 4, 1944

Appeal from Jackson Circuit Court; Hon. Emory H. Wright, Judge.

Reversed and Remanded.

Stanley Garrity, John W. Oliver and Caldwell, Downing, Noble & Garrity for appellants.

(1) Defendants' demurrers to the evidence should have been sustained because plaintiff failed to prove that the condition of defendants' store was such that defendants should have realized and foreseen as involving an unreasonable risk to plaintiff, and evidence showed that even if the condition complained of did constitute an unreasonable risk, plaintiff did not prove that defendants breached any duty owed plaintiff. 45 C. J. 631, sec. 2, pp. 631-632; Shaw v. Goldman, 116 Mo.App. 332, 92 S.W. 165; Brady v. Terminal R. R. Assoc. of St. Louis, 340 Mo 841, 102 S.W.2d 903, Defendants' duty to plaintiff was either to make any condition of the store that they realized or should have realized as involving an unreasonable risk to plaintiff, reasonably safe for plaintiff, or to have warned plaintiff of the existence of that condition. 2 Restatement of the Law of Torts, sec. 343, p. 938; Devine v. Kroger Groc. & Baking Co., 349 Mo. 621, 162 S.W.2d 813; Hudson v. K. C. Baseball Club, 349 Mo. 1215, 164 S.W.2d 318. (a) A pebble on the stair of defendants' store did not involve an unreasonable risk to plaintiff that defendants should have foreseen and realized. 2 Restatement of the Law of Torts, sec. 343, p. 938; Mann v Pulliam, 345 Mo. 543, 127 S.W.2d 426; Ilgenfritz v Mo. Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Wentz v. J. J. Newberry Co., 152 Misc. 392, 273 N.Y.S. 449; Wentz v. J. J. Newberry Co., 245 A.D. 790, 280 N.Y.S. 824; Lewis-Kures v. Edw. D. Walsh & Co., 102 F.2d 42 (Certiorari denied 308 U.S. 596, 84 L.Ed. 499). (b) The evidence showed that defendants did not breach any duty owed plaintiff, because plaintiff had such knowledge of the condition of defendants' store as to discharge any duty defendants might be said to have owed her. 2 Restatement of the Law of Torts, sec. 343, p. 938; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369. This case does not involve any question of contributory negligence as a matter of law. It involves the question of whether defendants breached any duty owed plaintiff. Goetz v. Hydraulic Pressed Brick Co., 320 Mo. 586, 9 S.W.2d 606; Stoll v. First Nat. Bank of Independence, 244 Mo.App. 364, 132 S.W.2d 676; Stoll v. First Nat. Bank of Independence, 345 Mo. 582, 134 S.W.2d 97. Any change of condition of defendants' premises does not affect the principles of law involved. Murray v. Ralph D'Oench Co., 347 Mo. 365, 147 S.W.2d 623. (2) Plaintiff's instruction No. 1 was erroneously given for the reason that it omitted an essential element of plaintiff's case, in that it failed to require the jury to find that defendants failed to warn plaintiff of the condition of the store which she claimed to be dangerous and of which there was evidence of her knowledge. Failure to warn is an essential element of plaintiff's case. 2 Restatement of the Law of Torts, sec. 343, p. 938; 1 Raymond's Missouri Instructions, sec. 93, p. 76; sec. 96, p. 82; sec. 98, p. 85; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.

(1) Defendants' demurrers to the evidence were properly overruled as the favorable evidence and favorable inferences clearly made a submissible case. (a) The presence of these irregular-shaped stones on the hard surface of the steps should have aroused in the defendants appreciation of the fact there was an appreciable chance someone might be injured thereby. Hieken v. Eichhorn, 159 S.W.2d 714, l. c. 718; Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W. 267, l. c. 273; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558, l. c. 567; Schneiter v. City of Chillicothe, 232 Mo.App. 338, 107 S.W.2d 112, l. c. 117; Seigel v. Kroger Grocery & Baking Co., 164 S.W.2d 645, l. c. 647; Reese v. Loose-Wiles Biscuit Co., 224 S.W. 63; Barnes v. National Biscuit Co., 3 S.W.2d 254; Wood v. Walgreen Drug Stores, 125 S.W.2d 534; Komor v. Liberty Foundry Co., 300 S.W. 1028. (b) Defendants breached their duty to plaintiff. Bartlett v. Taylor, No. 38517, Mo. Sup. (Not yet reported), opinion, pp. 7, 9, 12; Ambruster v. Devitt Realty & Investment Co., 107 S.W.2d 74, l. c. 81; Summa v. Morgan Real Estate Co., 165 S.W.2d 390, l. c. 393. (2) Plaintiff's instruction 1 was properly given. Summa v. Morgan Real Estate Co., 165 S.W.2d 390, l. c. 395; Clarke v. Jackson, 342 Mo. 537, 116 S.W.2d 122, 124 (5); Gundelach v. Compagnie Generale Transatlantique (Mo. Sup.), 41 S.W.2d 1, 2 (1, 2); Cento v. Security Building Co. (Mo. Sup.), 99 S.W.2d 1, 7 (11); Evans v. Sears, Roebuck & Co. (Mo. Sup.), 104 S.W.2d 1035, 1040 (9); Kellogg v. H. D. Lee Mercantile Co., 160 S.W.2d 838, 845 (9).

Cave, J. Cave, J., concurs.

OPINION

CAVE

This case comes to the writer after motion for rehearing was sustained. Sperry, Commissioner, prepared the original opinion of this court, and, after a careful reexamination of the whole record, the writer concludes that the same result must be reached as was reached in Commissioner Sperry's opinion, so we adopt the quoted part of that opinion.

"Rhea Schwartz, plaintiff, sued S. S. Kresge Company, a corporation, and Daniel K. Patrick, its manager, defendants for damages suffered by her when she was injured by a fall in defendants' store. Plaintiff had a verdict and judgment and defendants appeal.

"The material facts in evidence, stated from the viewpoint most favorable to plaintiff's theory of her right to recover damages, are as follows:

"Plaintiff testified that she entered defendants' store on its 12th Street level and, while eating a sandwich at the lunch counter therein, observed a porter who was sweeping and cleaning the flight of steps leading from the Main Street floor level to the 12th Street level; that she was facing said flight of stair steps and that she observed that all of said steps were littered with a large number of small reddish or blue colored pebbles, such as are commonly sold for use in the bottom of gold fish bowls; that a porter was sweeping these pebbles from the steps of the stairs into a container but that he had not yet finished their removal when she left the lunch counter and proceeded to the basement of the store, one floor down; that after she completed her mission in the basement she walked up to the Main Street floor of the store but, in doing so, did not traverse the stair steps first mentioned, nor did she see them; that after spending some time in the Main Street floor of the store, and some thirty to forty-five minutes after she first entered the store, she returned to the 12th Street level; that she descended the flight of stair steps first mentioned; that before beginning the descent she looked at the stairs and they appeared to be clear and clean; that she began the descent, not watching her feet but looking ahead in the direction she was proceeding; that when she planted her left foot on or about the third step from the top, her right foot then being on the step above, the ball of her left foot came down on a hard object which was on the stair step; that the object rolled or slid on the step, causing her left foot to slide; that by reason thereof she completely lost her balance and fell down the remainder of the steps to the floor below, being thereby injured.

"Plaintiff further testified that the object she stepped on was a small pebble similar to those which she had previously seen the porter removing from the steps; and that after she had composed herself, following the fall, she ascended the steps with the assistance of two of defendants' employees and saw a number of the previously mentioned pebbles on the step from which she fell, one of which was picked up by an employee of defendants and three more of which were later secured by plaintiff's brother, which latter were introduced in evidence. One of the pebbles in evidence was about 3/8 inch x 1/4 inch x 1/4 inch. It was virtually flat on one side, and it was otherwise irregular in shape.

"Defendants raise no question concerning the amount of the judgment. They contend that a submissible case was not made because plaintiff's evidence failed to prove that defendants were guilty of any negligence, for two reasons, to-wit: 1, the object which caused plaintiff's fall is not one which can, under the law, be considered as constituting an unreasonable risk, or as endangering the safety of defendants' invitees so as to render them liable for plaintiff's injuries; and, 2, if defendants did create, or permit, a dangerous condition, so as to render them liable therefor in an action for plaintiff's negligent injury, yet they are not liable to plaintiff in this case because she had such knowledge of the condition of defendants' store as to discharge any duty they owed her. If defendants are correct as to either of the above contentions the judgment should be reversed. [Stoll v. First National Bank of Independence (K. C.), 132 S.W.2d 676, l. c. 678; Stoll v. First National Bank of Independence (Sup.), 134 S.W.2d 97; 2 Restatement Law of Torts, section 343; Hudson v. Kansas City Baseball Club, 164 S.W.2d 318, l. c. 321.]

"Defendants after referring to a number of cases wherein liability was held in cases of the class here under consideration, say: "The test, however, underlying each of these cases is whether or not the defendant as a reasonable man may be said to be able to forsee that such a condition is likely to cause an accident." With defendants' conclusion in that regard we are in accord. Applying it to the...