Slack v. Kansas City Gas Co.

• Decision Date: 23 May 1938
• Docket Number: No. 19178.,19178.
• Parties: CECELIA SLACK, RESPONDENT, v. KANSAS CITY GAS COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

120 S.W.2d 70

CECELIA SLACK, RESPONDENT, v. KANSAS CITY GAS COMPANY, APPELLANT.

No. 19178.

Kansas City Court of Appeals. Missouri.

May 23, 1938.

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

AFFIRMED.

Charles H. Mayer and Charles M. Miller for appellant.

(1) Plaintiff was not entitled to recover or have judgment against defendant on the pleadings and the evidence for two reasons: First — the evidence disclosed no actionable negligence against defendant on account of the basement trap door being open, and second — the negligence of plaintiff in not making sure or looking to see if the basement trap door was open or closed, barred recovery by her. Swanson v. Schoenhofen Brewing Co., 215 Ill. App. 185; Shuck v. Security Realty Co., 201 S.W. 559; Convoy v. Osage Tribe No. 113, 135 Atl. 729; Hudson v. Church of Holy Trinity, 250 N.Y. 513, 166 N.E. 306; Medcroft v. Merchants Exchange, 295 Pac. 822; Larned v. Vanderline, 165 Mich. 464, 131 N.W. 165.

I. Frank Rope and Frank E. Reinhardt for respondent.

(1) The court properly denied defendant's peremptory instruction at the close of all of the evidence, for the reason (a) That the defendant, by its negligent acts, created a dangerous and unsafe condition which plaintiff, by the exercise of reasonable prudence and ordinary care was not bound to discover. 45 C.J. 882, sec. 317; Louisville Gas & Elec. Co. v. Nall, 198 S.W. 745; Brown v. Smith (Minn.), 141 N.W. 2. (b) Plaintiff was not guilty of contributory negligence as a matter of law, because she failed to see that the basement trap door was open, because the condition was not obvious and she had no reason to anticipate that the door would be open, and that issue was properly submitted to the jury. 45 C.J. 950, sec. 508; Evans v. Sears, Roebuck & Co., 104 S.W. (2d) 1035; Dewey v. Kline's 86 S.W. (2d) 622; State ex rel. v. Haid, 51 S.W. (2d) 1015; Crawford v. Stock Yards Co., 215 Mo. 394; Schneider v. C.H. Little Co. (Mich.), 151 N.W. 587. (c) There was substantial evidence of negligence on the part of the defendant as charged in its petition, and the controverted issues of fact were for the jury to determine. Hedrick v. Hurst, 104 S.W. (2d) 393; Asbury v. Fidelity Natl. Bank et al., 100 S.W. (2d) 946, l.c. 949; Mick v. John R. Thompson Co., 77 S.W. (2d) 470; Marquis v. Goldberg, 34 S.W. (2d) 549; Vogt v. Wurmb, 300 S.W. 278; Scott v. Kline's, Inc., 284 S.W. 831; Milzark v. Natl. Biscuit Co., 259 S.W. 832; Oakley v. Richards, 204 S.W. 505; Louisville Gas & E. Co. v. Nall, 198 S.W. 745.

CAMPBELL, C.

Plaintiff brought this suit to recover damages for personal injuries suffered by her when she fell down steps extending from the floor of her house into the basement.

From a judgment for plaintiff in the sum of $1500, the defendant has appealed.

The single assignment of error assails the action of the court in refusing defendant's requested instruction in the nature of a demurrer to the evidence.

In support of the assignment the defendant says (1) there was no proof defendant was negligent and (2) plaintiff was guilty of negligence.

The evidence must be viewed in a light most favorable to plaintiff and she is entitled to the benefit of any evidence introduced by the defendant, provided such evidence is not in contradiction of her own personal testimony or her theory of the case.

The facts show that, in the forenoon of September 9, 1936. Lawrence Blosser, defendant's employee, went into the kitchen of plaintiff's home in Kansas City of the purpose of testing part of defendant's equipment located in the basement of that home. When Blosser entered the kitchen plaintiff, her son and Mrs. Perry were present. In order for Blosser to go into the basement it was necessary for him to descend steps extending from the floor in the pantry of the kitchen into the basement. A trapdoor, when closed, formed a part of the floor of the pantry and concealed the steps. When Blosser entered the kitchen he was shown the trapdoor, how to open it and how to turn on a light in the basement. Thereupon he opened and left open the trapdoor, turned on the light in the basement and descended the steps. In a few minutes thereafter and while Blosser was in the basement, Mrs. Perry and plaintiff's son left the premises and plaintiff was called into another part of her house where she engaged in conversation with a neighbor; while thus engaged Blosser went from the house; presently plaintiff, in the performance of her household duties, attempted to enter the pantry, the door of which was a curtain. The trapdoor was open, in consequence of which she fell down the steps and was severely injured. When plaintiff attempted to go into the pantry the basement light was not on; the pantry was dark and the floor could not be seen without the aid of a light. The trapdoor had not been opened on the day of the accident until Blosser opened it.

From the foregoing the jury could find that Blosser and plaintiff were the only persons in the house when the former went from the basement and the house, and that he turned off the light and left open the trapdoor.

Blosser, for the defendant, testified that when he went into plaintiff's house the trapdoor was open and the light was on.

"Q. Did you ever touch the door in any way? A. I never touched the door in any way.

"Q. Whenever you go into a home like that you leave the conditions as you find them? A. Just exactly like I find them."

The practice and custom of Blosser to leave premises in the same condition in which he found them was not followed in the instant case.

Blosser, according to the evidence favorable to plaintiff, found the trapdoor closed, and according to all of the evidence, left it open. The trapdoor, when closed, was a part of the floor of the pantry and Blosser knew it. Blosser fround the premises safe and left them unsafe for the ordinary use of plaintiff.

Considering the evidence and the reasonable deductions to be drawn therefrom, the jury could find that Blosser, in failing to close the trapdoor, was not exercising due care in the circumstances. The failure to exercise care required by the circumstances is negligence. [Pearson v. Kansas City, 55 S.W. (2d) 485.]

Nor can we say plaintiff was guilty of negligence as a matter of law. There is nothing in the evidence favorable to plaintiff showing she knew or had cause to believe that danger beset her when she attempted to enter her pantry in the usual and ordinary manner. The condition which caused plaintiff to be injured was due to the failure of defendant's employee to leave the pantry in "exactly" the same condition in which he found it. Plaintiff having no cause to believe that danger lurked in her path, cannot, in the circumstances shown, be convicted of contributory negligence as a matter of law. [Dewey v. Kline's Inc., 86 S.W. (2d) 622; State ex rel. v. Haid et al., 51 S.W. (2d) 1015.]

We have read the cases cited in defendant's brief. In none of them were the facts similar to the facts in the present case.

Of the defendant's evidence it suffices to say it tended to show the trapdoor was open when Blosser entered the kitchen. The verdict shows the jury did not believe that evidence and hence, insofar as this court is concerned, that is the end of it.

The judgment is affirmed. Sperry, C., concurs.

PER CURIAM:

The foregoing opinion of CAMPBELL, C., is adopted as the opinion of the court. The judgment is affirmed. All concur.

ON MOTION FOR REHEARING.

CAMPBELL. C.

In motion for rehearing the defendant invokes the rule that a state of facts once shown to exist will be presumed to continue until the contrary is shown; and argues that when plaintiff went from the kitchen the trapdoor was open, and that it was her duty when she returned some ten minutes later "to ascertain whether or not the trapdoor was open before she stepped into the pantry, which could easily have been done by turning on the light or feeling with her foot."

The rule invoked does not apply to the facts in the instant case for the reason that while plaintiff was absent from the kitchen there was a change in conditions in one important particular, namely, the light in the basement was turned off. Had that change not been made the open stairway would have been discovered by plaintiff the instant she moved the curtain door and the accident would have been averted. Thus the jury could very well find it was the change in conditions which caused the injury.

The rule governing the determination of the question of the contributory negligence of a plaintiff in an action such as the present action has been stated in various ways.

"Where reasonable minds may differ as to the inferences to be drawn from facts and circumstances tending to prove contributory negligence, the question is one for the jury." [Compton v. Louis Rich Const. Co., 287 S.W. 474, 483.]

In the case of Wilson v. Wells, 13 S.W. (2d) 544, the Supreme Court in discussing the question of the plaintiff's contributory negligence, said:

"Negligence does not become a question of law alone, unless the acts constituting it are of such a...