Simmer v. May Department Stores

• Decision Date: 02 March 1926
• Docket Number: No. 19149.,19149.
• Parties: SIMMER v. MAY DEPARTMENT STORES.
• Court: Missouri Court of Appeals

282 S.W. 117

SIMMER v. MAY DEPARTMENT STORES.

No. 19149.

St. Louis Court of Appeals. Missouri.

March 2, 1926.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by Nellie Simmer against the May Department Stores for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Kelley, Starke & Hassett, of St. Louis, for appellant.

Mark D. Eagleton, of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff while employed as a waitress in a restaurant conducted by defendant on the sixth floor of its building, located in St. Louis, Mo.

The petition alleged that plaintiff sustained certain injuries as the result of a fall on defendant's dining room floor. It is alleged that defendant carelessly and negligently permitted the floor of said restaurant where plaintiff had to work to be dirty, muddy, slippery, and covered with refuse, crumbs, and food from the tables, and ordered, directed, and required plaintiff to use said floor when the same was in such condition, and failed to use ordinary care to provide a safe place to work.

The answer was a general denial, coupled with a plea of contributory negligence and assumption of risk.

Upon a trial, plaintiff recovered judgment, and defendant appeals.

The evidence discloses that the tables in this dining room were placed in rows running east and west, and north and south, and in this way north and south aisles were left between the tables as well as east and west aisles, and there were also aisles running from northeast to southwest. The cashier's desk was in the southwest corner of the dining room, and the kitchen was on the north side of the dining room. Plaintiff was working at four tables, located in the northwest corner of this dining room. Plaintiff was 43 years old, and had been employed by defendant as a waitress at the place of business where she was injured for about 9 years. Her hours were from 11 a. m. to 2:30 p. m., and her work took her to and from the dining room to the kitchen. On the day on which she claims to have received her injuries, she was working as a waitress in this dining room, and testified upon the trial that it was a very busy hour at the time she received her injury, and that at the place where she fell there was food, water, milk, butter, and some crumbs in the main aisle which she used and was directed to use in going from the tables she was serving to the kitchen. About a half hour before the accident she reported this condition of the floor to the forelady, Miss Sizemore. Miss Sizemore informed plaintiff that she would attend to it. The evidence discloses that there were bus boys or porters there, employed by defendant for the purpose of cleaning up such things. Plaintiff testified that this condition which she saw on the floor in the main aisle which she was using was about 3 feet in circumference, and extended all the way across the aisle. She was taking orders at a table, and turned and started toward the kitchen, when she slipped and fell on this slippery place on the floor. She testified that she did not know how this refuse got on the floor, but that she did not place it there herself or cause it to be there. The evidence discloses that plaintiff could have used other aisles if she had wanted to do so, but that this was the usual aisle which she used and was directed to use in the performance of her duties. She was very busy at the time she fell, waiting upon patrons of the restaurant.

On redirect examination, plaintiff's counsel asked her how many times a certain doctor had been to see her, to which question she made the following answer: "Well, the insurance company sent him to me." Defendant's counsel objected to the introduction of this testimony, and asked that the jury be discharged. The court overruled such motion, and defendant's counsel excepted.

It appears that, when plaintiff fell, she was aided by a gentleman sitting at one of these tables, to rise to her feet, after which she went into the kitchen and fainted or became unconscious, and was taken to a hospital.

It is unnecessary to set out in detail the nature and character of plaintiff's injuries, as there is no point made here that the verdict is excessive. According to plaintiff's testimony, her back and spine were injured to such an extent that she was required to wear a brace. The evidence of defendant was to the effect that plaintiff's condition was not caused by the fall. However, the jury settled that question by its verdict, and it is unnecessary to refer further to the question of plaintiff's injuries.

During the examination of Dr. Ernst, a physician who was testifying on behalf of plaintiff with respect to an examination made by means of X-rays, plaintiff's counsel asked the doctor to assume that plaintiff had a fall, landing in a sitting position, and prior to that time had had no pain in the region of her lower back, and after that time did have pain, and an acute angulated coccyx, and then state whether or not such a condition did, in his opinion, result from such an accident. The doctor was permitted to answer that it did, and this answer was made over the objections and exceptions of defendant's coun...