State ex rel. F. W. Woolworth Co. v. Bland

• Decision Date: 12 January 1948
• Docket Number: 40439
• Parties: State ex rel. F.W. Woolworth Company, a Corporation, et al., Relators, v. Ewing C. Bland et al., JJ
• Court: Missouri Supreme Court

208 S.W.2d 263

357 Mo. 339

State ex rel. F.W. Woolworth Company, a Corporation, et al., Relators, v. Ewing C. Bland et al., JJ

No. 40439

Supreme Court of Missouri

January 12, 1948

Rehearing Denied February 9, 1948.

Original Proceeding in Certiorari.

Affirmed.

Clay C. Rogers and Mosman, Rogers, Bell & Conrad for appellants.

(1) The evidence and the reasonable inferences arising therefrom are insufficient to charge the defendants with negligence. Plaintiff's fall was not caused by any negligence of the defendants; the condition which caused plaintiff to fall was not shown to have been caused by or known to defendants. Williams v. Kansas City Term. Ry. Co., 288 Mo. 11 231 S.W. 954; McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W.2d 555; Heidland v. Sears Roebuck, 110 S.W.2d 795; Keen v. City of St. Louis, 189 S.W.2d 139; Brunet v. S.S. Kresge Co., 115 F.2d 713; Parsons v. Green, 10 N.W.2d 40; S. S. Kresge v Fader, 116 Ohio St. 718, 158 N.E. 174; Miller v. Gimbel Bros., 262 N.Y. 107, 186 N.E. 410. (2) The plaintiff was guilty of contributory negligence as a matter of law. She admitted that she was not paying any attention to the conditions. Heidland v. Sears, Roebuck & Co., 110 S.W.2d 795; State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99. (3) The court erred in giving Instruction 1 for the reason that the evidence was not sufficient upon which to submit the instruction and for the reason that the instruction did not submit the specific cause of plaintiff's fall, and for the further reason that it gave to the jury a roving commission to find the defendant negligent on matters not confined to the evidence. The instruction was not within the purview of the evidence and was therefore an error. Degonia v. Railroad, 224 Mo. l.c. 589, 123 S.W. 807; Sparkman v. Wabash R. Co., 191 Mo.App. 463, 177 S.W. 703; Wells v. Raber, 166 S.W.2d 1073; Croak v. Croak, 33 S.W.2d 998; Jos. Greenspon's Son Pipe Corp. v. Hyman-Michaels, 133 S.W.2d 426. (4) The verdict of the jury is grossly excessive. There was no evidence of any permanent injuries, and no evidence to connect the conditions of which plaintiff claimed at the time of trial with the injuries sustained when she fell. Brooks v. McCray, 145 S.W.2d 985.

Trusty & Pugh, Guy W. Green, Jr., and A. B. Taylor for respondents.

(1) The court properly overruled the motions for directed verdict offered by defendants because the evidence showed a dangerous condition of the floor known to defendants in plenty of time to be made safe in the exercise of ordinary care. Belzer v. Sears, Roebuck & Co., 76 S.W.2d 701; Bankhead v. First Natl. Bank in St. Louis, 137 S.W.2d 594, certiorari quashed. State ex rel. First Natl. Bank v. Hughes, 144 S.W.2d 84; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Stoll v. First Natl. Bank of Independence, 134 S.W.2d 97; Smith v. Sears, Roebuck & Co., 84 S.W.2d 414; Hubenschmidt v. S.S. Kresge Co., 115 S.W.2d 211; Williams v. K.C. Terminal Ry., 231 S.W. 954; Perringer v. Lynn Food Co., 148 S.W.2d 601; Van Brock v. First Natl. Bank, 161 S.W.2d 258; Smith v. Sears, Roebuck & Co., 117 S.W.2d 658; Watson v. Aronberg, 15 S.W.2d 356; Ryan v. Standard Oil Co. of Ind., 144 S.W.2d 170; Summa v. Morgan Real Estate Co., 165 S.W.2d 390. (2) The evidence did not show that plaintiff was guilty of contributory negligence as a matter of law. Long v. Woolworth, 159 S.W.2d 619; State ex rel. Elliott's Dept. Store v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Stoll v. First Natl. Bank, 345 Mo. 582, 134 S.W.2d 97; Ilgenfritz v. Mo. Power & Light Co., 340 Mo. 648, 101 S.W.2d 723; Cameron v. Small, 182 S.W.2d 565; Bankhead v. First Natl. Bank in St. Louis, 137 S.W.2d 594; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Blackwell v. J. J. Newberry, 156 S.W.2d 14; Summa v. Morgan Real Estate Co., 156 S.W.2d 390; Becker v. Aschen, 131 S.W.2d 533. (3) The court properly gave plaintiff's Instruction 1 which was supported by the evidence. Rearden v. F.W. Woolworth Co., 154 S.W.2d 373; Propst v. Capital Mutual Assn., 233 Mo.App. 612, 124 S.W.2d 515; Start v. National Newspapers' Assn., 253 S.W. 42; Lueking v. City of Sedalia, 167 S.W. 1152; Daneschocky v. Sieben, 195 Mo.App. 470, 193 S.W. 966; Shafir v. Sieben, 233 S.W. 419, 17 A.L.R. 637. (4) The verdict of the jury was not excessive. Marshall v. St. Louis Union Trust Co., 196 S.W.2d 435; Rockenstein v. Rogers, 31 S.W.2d 792; Plater v. Kansas City, 68 S.W.2d 800; Couch v. St. Louis Public Service Co., 173 S.W.2d 617.

OPINION

Douglas, J.

Cecile Clifford recovered judgment for $ 5,000 against the F.W. Woolworth Company and another for her personal injuries caused by slipping and falling on the floor in a Woolworth store in Independence. On appeal to the Kansas City Court of Appeals the judgment was affirmed. Clifford v. F.W. Woolworth Co. (Mo. App.), 201 S.W.2d 416.

We granted certiorari on the contention of the Woolworth Company that the record failed to show the dangerous condition of the floor had existed for any length of time prior to the fall, so that the company could not be charged with notice of the dangerous condition. On the question of notice, the company based its petition for certiorari on three cases, viz.: State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99; McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W.2d 555; and Williams v. Kansas City Terminal Railway Co., 288 Mo. 11, 231 S.W. 954. The Trading Post and McKeighan cases announce the established rule that the burden is on the customer who falls by slipping upon some foreign substance on a store room floor to produce evidence showing the presence of the foreign substance on the floor for a sufficient time to give notice of its presence to the storekeeper. Such evidence was not adduced in these two cases so the storekeeper was held not liable. The Williams case turned on a different question. That case pointed out that the presence of dampness on the railroad station's stairway could have been reasonably anticipated because it had been raining all day, but that even though the stairs were wet they were still reasonably safe because they were equipped with a safety tread of standard construction.

We now turn to the transcript on appeal in the case at bar to ascertain what the evidence showed on the question of notice. We may do so despite the fact this is a proceeding in certiorari because under the new 1945 Constitution we determine all cases coming here from a Court of Appeals, "whether by certification, transfer or certiorari, the same as on original appeal." Art. V. Sec. 10, Constitution 1945.

The evidence in the transcript on appeal shows it was a wet sloppy, February day. Customers had been tracking muck into the store all day and to such extent that an antislip preparation called Feldspar was sprinkled on the floor to keep it from becoming slippery. The muck accumulated so rapidly it was necessary to mop the floor at thirty minute intervals. This of course would remove the antislip preparation and it would have to be applied anew. There was evidence that the floor at the entrance where the accident occurred had been mopped about thirty minutes before plaintiff entered the store some time after four-thirty in the afternoon. Out of doors the ground had frozen over by that time of day, and there were patches of ice on the sidewalks. Plaintiff...