Smith v. Sears, Roebuck & Co.

• Decision Date: 07 June 1938
• Docket Number: No. 24440.,24440.
• Citation: 117 S.W.2d 658
• Court: Missouri Court of Appeals
• Parties: SMITH v. SEARS, ROEBUCK & CO.

117 S.W.2d 658

SMITH v. SEARS, ROEBUCK & CO.

No. 24440.

St. Louis Court of Appeals. Missouri.

June 7, 1938.

Rehearing Denied June 21, 1938.

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

"Not to be published in State Reports."

Action by Anna Smith against Sears, Roebuck & Co., a corporation, for injuries sustained in fall on slippery floor in vestibule of defendant's store. From a verdict and judgment for plaintiff for $1200, defendant appeals.

Reversed and remanded.

Anderson, Gilbert, Wolfort, Allen & Bierman, of St.Louis, for appellant.

Robert B. Denny, of Clayton, and Berthold & Chase, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff by falling on a slippery floor in the vestibule of defendant's store located on Kingshighway Boulevard, in the City of St. Louis.

Plaintiff, in her petition, alleges that defendant negligently permitted the floor of the vestibule to be and remain covered with water and other slippery and foreign substances, when defendant knew or by the exercise of ordinary care could have known that some one of its customers or patrons was likely to slip upon said water and other foreign and slippery substances on said floor, in time by the exercise of ordinary care to have removed same and thereby have avoided injuring plaintiff, but negligently failed to do so, and as a direct result thereof plaintiff slipped and fell on said water and other foreign and slippery substances and thereby sustained serious and permanent injuries.

The answer is a general denial coupled with a plea of contributory negligence.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $1200, and defendant appeals.

The cause was here on a former appeal by defendant from a judgment in favor of plaintiff. On that appeal the judgment was reversed and the cause remanded for error in an instruction. Smith v. Sears, Roebuck & Co., Mo.App., 84 S.W.2d 414.

On the present appeal defendant assigns error for the refusal of its instruction in the nature of a demurrer to the evidence.

A like assignment was made and overruled by this court on the former appeal.

Inasmuch as the facts appearing on the present appeal are substantially the same as on the former appeal, it would serve no useful purpose to set out in detail the evidence disclosed by the record before us.

Briefly stated, the evidence for the plaintiff is to the effect that on a rainy day in October, plaintiff, accompanied by a friend, went to defendant's store and on entering the vestibule stepped in a puddle of muddy, slimy water—muddy and slippery—on the floor of the vestibule, and slipped and fell on her left side. This puddle of water was about four feet long and a foot and a half wide, just inside the outer doorways of the vestibule. The outer doors were closed. The inner doors were open. The outer doors opened outward.

Plaintiff could not see the puddle of water when the doors were closed. She opened one of the outer doors and took one step into the vestibule, stepping in the puddle of muddy, slimy and slippery water. Her foot slipped from under her causing her to fall. She did not see the puddle of water until after she slipped and fell in it. When she fell she was helped up by her companion and she sat down on a stool in the store just a few feet from the vestibule. She told a shop girl, who made inquiry, that she had fallen in the vestibule and was hurt. The shop girl said, "I will call the manager." A gentleman came at once, and said, "I am the manager," and asked plaintiff what was wrong. She told him she had fallen in the vestibule. A porter came up and the manager said to him: "I told you this morning to keep this water wiped up. Get a mop and wipe it up. It is dangerous, and the lady has just fallen."

There was also testimony that the puddle of muddy, slimy and slippery water was on the floor somewhat more than an hour before plaintiff slipped and fell in it.

Plaintiff, on cross-examination, testified:

"Q: When you opened the door of the vestibule and stepped in, did you look down to see where you were stepping when you started in? A. I didn't look directly down; I looked the way I was going.

"Q: Did you look at the floor before you stepped in? A. I didn't see the water.

"Q: Did you look down at the floor? A. I looked where I was going, but I didn't look down to see the water until after I fell.

"Q: After you fell you saw it without any trouble? A. Naturally in getting up I saw it. I was in it.

"Q. You never did look after you opened the door before you fell, did you, at the floor? A. I was looking in the general direction the way I was going."

The manager of defendant's store, testifying for defendant, stated that he did not have any conversation with plaintiff and had no knowledge of the plaintiff's having fallen in the vestibule until after summons in this case was served, and that the service of the summons was the first notice he had that plaintiff claimed to have fallen there; that he personally made investigation of plaintiff's complaint after suit was filed and got no information or report from any one who had seen or heard of the accident.

On the former appeal, in answer to the argument of the defendant that plaintiff's testimony showed her guilty of contributory negligence as a matter of law, this court ruled as follows:

"We think such argument fails to take into account the evidence showing that the outer doors of the vestibule were closed when plaintiff approached them for the purpose of entering defendant's store, and that she therefore could not see the puddle of muddy slippery water prior to opening the door. There is no evidence to show that plaintiff had any knowledge of the presence of a puddle of muddy slippery water on the floor of the vestibule inside of the outer door prior to the time she opened the door, and when we take into consideration all the circumstances under which plaintiff entered the vestibule, we cannot say that she was guilty of contributory negligence as a matter of law in failing to see and avoid the muddy slippery water in the brief moment between the time she opened...