State ex rel. Elliott's Dept. Store Co. v. Haid

• Decision Date: 01 July 1932
• Docket Number: No. 31340.,31340.
• Citation: 51 S.W.2d 1015
• Court: Missouri Supreme Court
• Parties: THE STATE OF MISSOURI at the Relation of ELLIOTT'S DEPARTMENT STORE COMPANY, a Corporation, Relator, v. GEORGE F. HAID, WILLIAM DEE BECKER and SIMON G. NIPPER, Judges of the St. Louis Court of Appeals.

51 S.W.2d 1015

THE STATE OF MISSOURI at the Relation of ELLIOTT'S DEPARTMENT STORE COMPANY, a Corporation, Relator, v. GEORGE F. HAID, WILLIAM DEE BECKER and SIMON G. NIPPER, Judges of the St. Louis Court of Appeals.

No. 31340.

Supreme Court of Missouri, Division 2.

July 1, 1932.

Certiorari

WRIT QUASHED.

Allen, Moser & Marsalek for relator.

(1) Respondents' holding that the evidence was sufficient to show negligence on relator's part conflicts with the controlling opinions of this court. It was admitted that the premises about relator's stairway were sufficiently light to enable anyone to see the tables, the merchandise on the tables, the display cases, the stairway, and every detail of the surroundings. The existing conditions were similar to those commonly found in stores and public buildings generally. The case is controlled by the decisions of this court which affirm the rule that a store proprietor cannot be held negligent, where the condition complained of does not differ from that usually and customarily found in similar establishments. Vogt v. Wurmb, 300 S.W. 278; Peck v. Yale Amusement Co., 195 S.W. 1033; Main v. Lehman, 294 Mo. 589; American Brew. Assn. v. Talbot, 141 Mo. 684; Cash v. Sonken-Galamba Co., 17 S.W. (2d) 927; Newhouse v. St. Louis Bank Building & Equipment Co., 33 S.W. (2d) 932. (2) Respondent's opinion that plaintiff's contributory negligence was a question for the jury conflicts with the controlling decisions of this court. It was admitted that the light at and about the stairway was sufficient; that plaintiff could have seen the stairway if she had looked, but that she failed to look toward the floor. Her evidence shows that she looked through the stairway opening and over the steps. Her evidence constitutes an admission that she failed to look for or see the stairway, which was directly within her view, and shows contributory negligence on her part, as a matter of law. Geninazza v. R.U. Leonori A. & S. Co., 252 S.W. 417; McGinnis v. Press Brick Co., 261 Mo. 287; Cox v. Bondurant, 220 Mo. App. 948; State ex rel. Cox v. Trimble, 312 Mo. 322; Cash v. Sonken-Galamba Co., 17 S.W. (2d) 931.

George W. Wellman and Anthony Hochdoerfer for respondents.

(1) Respondent's holding that the evidence was sufficient to show actionable negligence on relator's part was not erroneous and does not conflict with opinions of this court. (a) It was the duty of relator to exercise ordinary care to maintain its premises in a reasonably safe condition. Kean v. Schoenig, 103 Mo. App. 77; Shaw v. Goldman, 116 Mo. App. 338; Scott v. Klines, Inc., 284 S.W. 832; Glaser v. Rothschild, 221 Mo. 185; Oakley v. Richards, 275 Mo. 276. (b) Relator owed duty to warn of the existence of the stairway or dangerous place in store. Deronet v. F.W. Woolworth, 89 N.J.L. 670; Shaw v. Goldman, 116 Mo. App. 339; Welsh v. McAllister, 15 Mo. App. 499; Christopher v. Russell, 63 Fla. 196; Hendricken v. Meadows, 154 Mass. 601; Brown v. Stevens, 136 Mich. 314; View v. The Metropolitan West Side Elevated Co., 166 Ill. App. 161. (c) Determination of the facts constituting negligence or due diligence of the defendant was for the jury. Hendricken v. Meadows, 154 Mass. 601; Mueller v. Holekamp, 260 S.W. 121; Deronet v. Wollworth, 89 N.J.L. 669; 45 C.J., p. 1279, sec. 852; Mathews v. The City of Cedar Rapids, 80 Iowa, 463. (d) Similarity of conditions or usual and customary method is not a test of negligence. Kelly v. Parker Washington Co., 107 Mo. App. 495; Green v. Kansas City Southern Railroad, 142 Mo. App. 82; Walker v. Mitchell Clay Mfg. Co., 291 S.W. 183. (2) Respondent's opinion that plaintiff was not guilty of contributory negligence as a matter of law was not erroneous and does not conflict with decisions of this court. (a) Plaintiff was not negligent as a matter of law. Marquis v. Goldberg, 34 S.W. 549; Downing v. Merchants Natl. Bank, 192 Iowa, 1254; Radebaugh v. Woolworth, 214 Ill. App. 370; Deronet v. F.W. Woolworth Co., 89 N.J.L. 670; Brown v. Stevens, 136 Mich. 314; Christopher v. Russell, 63 Fla. 191; McRickard v. Flint, 114 N.Y. 228; Hendricken v. Meadows, 154 Mass. 601; Delate v. Loose-Wiles Biscuit Co., 213 S.W. 887; Young v. Waters-Pierce Oil Co., 185 Mo. 667. (b) Negligence is not imputable to a person for failing to look out for danger when, under the surrounding circumstances, the person sought to be charged with it had no reason to suspect that danger was to be apprehended. Downing v. Merchants Natl. Bank, 192 Iowa, 1255; Langan v. The St. Louis, Iron Mountain & Southern Railroad Co., 72 Mo. 398; Engel v. Smith et al., 82 Mich. 7; Christopher v. Russell, 63 Fla. 197; Crawford v. Kansas City Stockyards, 215 Mo. 413; State ex rel. Cox v. Trimble, 279 S.W. 65. (c) Plaintiff cannot be held guilty of contributory negligence for failing to look to the floor, because she was not bound to do so and had a right to assume that the floor was reasonably safe. Downing v. Merchants Natl. Bank, 192 Iowa, 1254; Hendricken v. Meadows, 154 Mass. 601; Christopher v. Russell, 63 Fla. 197; Brown v. Stevens, 136 Mich. 316; Powers v. Penn Mutual Life Ins. Co., etc., 91 Mo. App. 65. (d) Not guilty of contributory negligence where conditions existed to divert mind, even though light be sufficient, or where circumstances exist that are calculated to deceive an ordinary prudent person. Downing v. Merchants Natl. Bank, 192 Iowa, 1253; View v. The Metropolitan West Side Elevated Ry. Co., 166 Ill. App. 159; Christopher v. Russell, 63 Fla. 197; Hendricken v. Meadows, 154 Mass. 601; Mathews v. Cedar Rapids, 80 Iowa, 459; Mangan v. Des Moines City Ry. Co., 200 Iowa, 607; Cantwell v. The City of Appleton, 71 Wis. 468. (3) Opinion of appellate court must be in conflict with designated opinion of Supreme Court, and if it does not conflict it cannot be legally quashed, although it may be erroneous. State ex rel. Cox v. Trimble, 279 S.W. 65.

COOLEY, C.

Certiorari to the St. Louis Court of Appeals. One Emma Essenpreiss, whom we shall herein refer to as plaintiff, brought suit in the Circuit Court of the City of St. Louis against Elliott's Department Store Company, defendant, to recover damages for personal injuries sustained by falling down a stairway in said company's store. She recovered judgment for $5,000 from which defendant, relator here, appealed to the St. Louis Court of Appeals where the judgment was affirmed. Relator brings this proceeding to quash the opinion and judgment of the Court of Appeals because of alleged conflict of that opinion with certain decisions of this court, the claimed conflict being in the holding by respondents (1) that upon the facts shown plaintiff made a submissible case as to negligence on the part of the defendant and, (2) that the plaintiff's alleged contributory negligence was a question for the jury. In this proceeding the only question for our determination is whether or not respondents' opinion conflicts with prior decisions of this court on the same or similar facts and in determining that question we take the facts as stated in respondents' opinion, as follows:

"The first floor of defendant's store consisted of a large room without partitions. There was a basement underneath this floor, and the stairway down which plaintiff fell ran from the first floor to the basement. It extended east and west, parallel with, and about eighteen inches from the south wall of the store. It was four or five feet wide. The entrance to the stairway was at the west end, so that a person in descending the stairway would be walking from west to east. There was a railing on the east and north sides of the stairway opening. The railing on the north side extended to the head of the stairway. A number of display cases stood against the south wall and occupied the eighteen inches of space between the wall and the south side of the stairway opening. These cases were six or seven feet high, with their bases at the floor level. They extended beyond the stairway, both east and west. Parallel with, and immediately north of the stairway, and against the north railing, there stood a table, twelve feet long and two and one-half feet wide, on which merchandise, consisting of some sort of wearing apparel, was displayed. The west end of this table was flush with the head of the stairway and the railing. A short distance north of, and parallel to this table, was another table on which similar merchandise was displayed. The space between the two formed an aisle through which the customers walked. West of the stairway entrance, at a distance of a few feet, there was another table, with merchandise on it, extending north and south.

"Plaintiff testified that on the occasion in question she and her sister entered the store at the Washington Avenue entrance; that they walked south, then turned to the right and walked west along the aisle between the two tables above mentioned; that she was looking at the merchandise displayed on the tables; that while walking east in the aisle she saw the display cases against the south wall; that she stopped and examined the clothing on the table; that as she stood at the table she could not see the bottom of the show cases on the south wall; that her purpose in going to the store was to buy a dress; that there was no sign or warning of any kind of the existence of the stairway; that she did not see the stairway before she fell, and never saw anyone to call her attention to it; that she had never been in the store prior to this time; that the table immediately north of the stairway was about the usual height of tables in stores; that the clothing piled on the table extended up to about the height of her breast; that she looked over the top of the clothing so as to see the display cases against the south wall, but that she could not see the stairway; that there was an open space to the south side of the table, between it and the display cases that were over against the south wall; that there was nothing...