Stanfill v. Trading Post Co.

• Decision Date: 24 May 1937
• Docket Number: No. 18863.,18863.
• Citation: 106 S.W.2d 952
• Parties: STANFILL v. TRADING POST CO.
• Court: Missouri Court of Appeals

106 S.W.2d 952

STANFILL v. TRADING POST CO.

No. 18863.

Kansas City Court of Appeals. Missouri.

May 24, 1937.

Rehearing Denied June 14, 1937.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

"Not to be published in State Reports."

Action by Stella F. Stanfill against the Trading Post Company: Judgment for plaintiff, and defendant appeals.

Affirmed.

L. E. Durham, I. M. Lee, and Wright Conrad, all of Kansas City, for appellant.

James R. Sullivan and Hume & Raymond, all of Kansas City, for respondent.

SHAIN, Presiding Judge.

Plaintiff's cause of action is for damages for personal injuries alleged to have been caused by a fall on the floor of defendant's storeroom, which fall, it is alleged, was caused by the negligence of defendant in allowing and permitting the floor of said store at the place where plaintiff fell to become and remain wet and slippery and negligently permitted foreign substances to be and remain on said floor at said place and allowed the floor to remain wet and slippery at said point where said foreign substance was permitted to be and remain.

Plaintiff's petition duly alleges as to notice of the alleged condition of the floor. The defendant joined issue by general denial and by plea of contributory negligence. There was a trial by jury which resulted in a verdict for plaintiff in the sum of $6,000. Judgment was had and entered for plaintiff for aforesaid amount, and defendant duly appealed.

Opinion.

We will continue to refer to the parties to conform to situation in the trial court.

The defendant at the close of the evidence offered an instruction in the nature of a demurrer to the evidence. Same was refused and defendant rests his case here on claim of error in the refusal of said instruction.

Defendant bases its claim on two alleged grounds: First, that defendant was not negligent at law; and, second, that plaintiff was guilty of contributory negligence.

As the finding of the jury was for plaintiff, it follows that if there is any substantial evidence that supports the verdict, then the refusal of the peremptory instruction does not constitute error.

In passing upon a claim that the trial court should have directed a verdict appellate courts are very much restricted and the litigating appellant, not having the distinction between trial and appellate courts in mind, often feels aggrieved when the appellate court passes over without comment cogent evidence that supports his theory of the case. This is due to the fact of not knowing that it becomes our duty to carefully study the record and give to the party having secured a jury verdict the benefit of the most favorable testimony in his behalf and in doing so ignore competent contradictory evidence. It follows that judicial opinions often appear to the losing party as but argument and brief of an opposing counsel.

Reverting to the case in hand, the plaintiff, a customer of defendant's store, entered said store for the purpose of making purchase of merchandise. There was a meat counter on the south side of the store. In the center and on both sides of the store there were counters and display racks, upon which groceries and vegetables were on display. On the day in question, February 13, 1935, there is testimony that there was moisture in the air and trace of rain had fallen during the day.

The plaintiff testified in her own behalf, that at shortly after 6 p. m. she entered defendant's store to make purchases and first went to the meat counter on the south side, and not at the time seeing what she wanted, concluded to go to the south side and market for groceries and vegetables with intent to return to the meat counter later. She further testified that on the way to the south side she slipped and fell on the floor and thereby received the injuries for which she herein complains. The defendant testified that in entering the store, in going to the meat counter and in proceeding to the south side, she did not notice any evidence of the conditions that she claims caused her to slip and fall. She repeatedly reiterated that she did not look at the floor. She testified, "I wasn't looking at the floor. I was looking at the display of groceries and meats, going to the meat counter."

The plaintiff testified that the first notice she had of the condition of the floor was after she started to slip. When asked what caused her to slip and fall she said, `There was some dirty, bruised, mushed celery stalks and lettuce leaves on the floor." When asked as to the appearance of the foreign substance on the floor, the witness said, "Well, it was dark and mashed and the floor was wet and I stepped on it and my foot went from under me and I fell."

The plaintiff stated that her left heel slipped about two and a half feet and that there was some of the lettuce leaves on her heel after she fell.

In cross-examination of the plaintiff, the following questions and answers appear:

"Q. (By Mr. Conrad): When you opened the door to enter the store the floor was there open to your vision, was it not? A. Yes, sir.

"Q. And as you went into that store did you see any evidence of moisture there? A. Well, I didn't pay any attention to the floor. I was looking across to the meat counter. I didn't look down to the floor.

"Q. Did you see whether there was any there at all? A. I didn't pay any attention to it then.

"Q. You didn't see any water then as you went into the store? A. I didn't pay any attention to it.

"Q. You didn't pay any attention to it? A. No, sir.

"Q. But, did you in fact, see any water there? A. No.

"Q. Did you observe any evidences of moisture there? A. No, sir.

"Q. But as a matter of fact, you knew, did you not, that in all probability there was moisture coming from the street into the store? A. I never thought anything about it."

The plaintiff was confronted on cross-examination with what was termed a report of the accident given to two men who called upon her about two weeks after the accident.

The above is shown to be a report of an interview when plaintiff was in the hospital and was not signed by plaintiff. The plaintiff made denial as having said what was purported concerning condition of floor, and made the...