Stewart v. George B. Peck Co.

• Decision Date: 03 July 1939
• Docket Number: No. 19472.,19472.
• Citation: 135 S.W.2d 405
• Parties: MARY I. STEWART, RESPONDENT, v. GEORGE B. PECK COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

135 S.W.2d 405

MARY I. STEWART, RESPONDENT, v. GEORGE B. PECK COMPANY, A CORPORATION, APPELLANT.

No. 19472.

Kansas City Court of Appeals, Missouri.

July 3, 1939.

Appeal from the Circuit Court of Jackson County. — Hon. Albert A. Ridge, Judge.

AFFIRMED.

Parker & Knipmeyer for appellant.

(1) The court erred in refusing to give defendant's instruction marked "B" at the close of the whole case, which instruction was in the nature of a demurrer to the evidence and should have directed a verdict for the defendant for the following reasons: (a) The alleged defect of the step was so infinitesimal that it was not actionable and does not constitute negligence. Ilgenfritz v. Mo. Power & Light Co., 340 Mo. 648, 101 S.W. (2d) 723; Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982; Cluett v. Union Electric Light & Power Co., 220 S.W. 865; Maxwell v. Kansas City, 227 Mo. App. 234, 52 S.W. (2d) 487; Taylor v. Kansas City, 112 S.W. (2d) 562; O'Malley v. City of St. Louis, 119 S.W. (2d) 785; Frappier v. Lincoln Stores, 279 Mass. 214, 180 N.E. 522; Chapman v. Clothier, 274 Pa. 394, 118 Atl. 356; Brace v. Kirby, 43 Pa. Sup. Ct. 389; Johnson v. Fainstein, 219 Mass. 537, 107 N.E. 351; 20 R.C.L. 56. (b) There was no evidence that the defendant had actual or constructive notice of the alleged defective condition which caused plaintiff's fall. McKeighan v. Klines, Inc., 339 Mo. 523, 98 S.W. (2d) 555; State ex rel. Trading Post v. Shain, 116 S.W. (2d) 99; Hubenschmidt v. S.S. Kresge Co., 115 S.W. (2d) 211; Monsour v. Excelsior Tobacco Co., 115 S.W. (2d) 219; Berberet v. Electric Park Amusement Co., 319 Mo. 275, 3 S.W. (2d) 1025; Kaufman Dept. Stores v. Cranston, 169 C.C.A. 637, 258 Fed. 917; Schnatterer v. Bamberger, 81 N.J.L. 558, 79 Atl. 324; Leach v. S.S. Kresge Co., 147 Atl. 759; Taylor v. Kansas City Terminal Ry. Co., 240 S.W. 513; Downing v. Jordon Marsh Co., 234 Mass. 159, 125 N.E. 207; Broadston v. Biddeo Clothing Co., 178 N.W. 190; Finn v. Terminal Ry. Assn. of St. Louis, 97 S.W. (2d) 890; Buda v. Dzuretzko, 87 N.J.L. 34, 93 Atl. 83; 45 C.J. 653. (c) Plaintiff's evidence leaves the cause of her fall and injuries entirely in the field of conjecture and speculation, and wholly fails to establish the alleged defect as the proximate cause thereof. Faust v. East Prairie Milling Co., 20 S.W. (2d) 918, l.c. 920; Boyd v. Logan Jones Dry Goods Co., 340 Mo. 1100, 104 S.W. (2d) 348; Cluett v. Union Electric Light & Power Co., 220 S.W. 865, l.c. 867; Hayes v. S.S. Kresge Co., 100 S.W. (2d) 325, l.c. 328. (2) The court erred in admitting evidence as to the nurse, doctor, hospital and medical bills, and erred in permitting the jury to assess damages to plaintiff for such items for the reasons that plaintiff was a married woman without separate estate or funds and therefore not entitled to recover for such damages, and because there was no evidence to prove that such items of expense were reasonable. McLean v. Kansas City, 81 Mo. App., 72; Engleman v. Met. St. Ry. Co., 133 Mo. App. 514, 113 S.W. 700; Twedell v. St. Joseph, 167 Mo. App. 547, 152 S.W. 432; Womach v. St. Joseph, 201 Mo. 467, 100 S.W. 443; 66 A.L.R. 1189; Irwin v. McDougal, 217 Mo. App. 645, 274 S.W. 923, l.c. 926; Elliott v. Chicago, Milwaukee & St. Paul Ry. Co., 236 S.W. 17; Franklin v. Butcher, 144 Mo. App. 660; Woodward v. Dr. T.G. Donnell, 146 Mo. App. 119, 123 S.W. 1004. (3) The court erred in permitting plaintiff's counsel, over the objection of defendant, to make unfair, unwarranted and prejudicial statements in the final argument to the jury. Chapman v. Mo. Pac. Ry. Co., 217 Mo. App. 312, 269 S.W. 688; Amsinger v. Najim, 335 Mo. 528, 73 S.W. (2d) 214, l.c. 216; Cooper v. Met. Life Ins. Co., 94 S.W. (2d) 1071; Huskey v. Met. Life Ins. Co., 94 S.W. (2d) 1075; Atkinson v. United Rys. Co., 286 Mo. 634, 228 S.W. 483; Chavaries v. Ins. Co., 110 S.W. (2d) 790; Beer v. Martel, 332 Mo. 53, 55 S.W. (2d) 482.

James W. Broaddus and Jos. R. Stewart for respondent.

(1) (a) The court did not err in overruling defendant's demurrer for the reason, that it cannot be said as a matter of law that where it was shown the loose screw protruded above the surface of the tread a sufficient distance to catch and hold plaintiff's heel it was not negligence, but, at most, it presented a condition about which reasonable minds might differ or draw different inferences and was, therefore, a jury question. Young v. Wheelock, 33 Mo. 992, 64 S.W. (2d) 950; State ex rel. Peters v. Reynolds (Mo.), 214 S.W. 121; Sandifer v. Lynn, 52 Mo. App. 553; Eberly v. Railroad Co., 96 Mo. App. 361; Parker v. Nelson Grain & Milling Co., 330 Mo. 95, 48 S.W. (2d) 906; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W. (2d) 58; Hellyer v. Sears, Roebuck & Co., 67 Fed. (2d) 584. (b) There was evidence from which the jury was justified in finding that defendant had constructive knowledge of the defective condition which caused plaintiff's fall. Powell v. Schofield (Mo. App.), 15 S.W. (2d) 876; Vitale v. Wells (Mo. App.), 285 S.W. 522; Finn v. Terminal R. Assn. of St. Louis (Mo. App.), 97 S.W. (2d) 890; Wheeler v. Sawyer, 219 Mass. 103, 106 N.E. 592; Gould v. Ry. Co., 191 Mass. 396, 77 N.E. 712; Hannan v. Wire Co., 193 Mass. 127, 78 N.E. 749; Shavelson v. Marcus, 173 N.E. 596. (c) There was evidence from which the jury was justified in drawing the inference that the loose and protruding screw was the proximate cause of plaintiff's injuries. Johnston v. R. Co., 150 Mo. App. 304, 130 S.W. 413; Anderson v. Asphalt & Distributing Co. (Mo.), 55 S.W. (2d) 688; State ex rel. v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; Young v. Wheelock, 333 Mo. 992, 64 S.W. (2d) 950; Pentecost v. R.R. Co., 334 Mo. 572, 66 S.W. (2d) 533; Long v. Woolworth Co. (Mo. App.), 109 S.W. (2d) 85. (2) (a) The court did not err in admitting evidence as to the nurse, doctor, hospital and medical bills for the reason they were personally charged to plaintiff. McLean v. Kansas City, 81 Mo. App. 72; Cowgill v. City of St. Joseph, 180 Mo. App. 327, 167 S.W. 1157. (b) There was evidence to prove such items of expense were reasonable, because they were paid, which, of itself, is evidence that the charges were reasonable. Abbitt v. St. Louis Transit Co., 104 Mo. App. 534, 79 S.W. 496; Wyse v. Miller (Mo. App.), 2 S.W. (2d) 806. (3) There was no prejudicial statement made by plaintiff's counsel in his argument to the jury. Young v. Sinclair Refining Co. (Mo. App.), 92 S.W. (2d) 995; Edward v. Smith (Mo. App.), 286 S.W. 428.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $4000, and defendant has appealed.

The facts show that defendant operates a retail dry goods store in Kansas City; that about 3:00 P.M. of September 14, 1936, plaintiff, a married lady, 66 years of age, visited defendant's store in company with her daughter for the purpose of shopping; that while her daughter was engaged in shopping on the first floor of defendant's store, plaintiff started from that floor to the basement by means of a stairway. From the first floor the stairway led eastwardly down to a landing, at which point it turned to the south. There were four steps between the landing and the basement floor. Plaintiff fell and was injured at the second step from the bottom.

The steps of the stairway were of steel pan construction. The tread or surface consisted of a Mason tread which was attached to the steel pan. The space between the tread and the pan was filled with concrete. Machine screws were screwed into nuts set in the concrete, thereby fastening the tread to the construction beneath. The heads of the screws were about a quarter of an inch in diameter. The steps were 5 feet 8½ inches long, 10½ inches wide and 7½ to 8 inches high. At the front edge and on the top of each step and running its full length was a metal tread 6 or 6½ inches in width and to the rear of this tread there was a strip of linoleum covering the remainder of the top of the step. The top of the metal part of the tread, referred to in some parts of the record as a plate, was constructed with alternate ridges and grooves. These grooves were 3/16 to ¼ of an inch in depth. The metal tread or plate of each step was fastened with 14 to 16 machine screws. The screws were inserted in the step through holes located in the grooves. The steps had been constructed in the summer of 1935.

Plaintiff walked down the first flight of steps to the landing, proceeding along the right side of the stairway. When she reached the landing she walked over to the left side and started south down the remaining four steps to the basement, walking along the east or left side of the stairway with her left hand on the railing and her pocketbook and gloves in her right hand. She was walking a foot or a foot and ahalf west of the railing. When plaintiff put her right foot on the last step and started to raise her left foot from the second step from the bottom something on the second step caught her left heel of her shoe holding her heel and causing her to fall forward on to the basement floor, twisting her as she fell and breaking her left hip. Her heel did not catch on the edge of the step.

Plaintiff's shoe was about 9½ inches in length. It was about 5½ inches from the center of the ball to the front edge of the heel of the shoe. The shoe had a military heel. Plaintiff testified that she might have had the point of her toe over the edge of the step when her heel caught; "the ball of my foot was on the step;" that her heel was 4 to 5 inches from the outer edge of the step. "I would say 6 inches." At one place she said it was 6½ inches.

After her fall the shoe which plaintiff was wearing at the time had a mark on the inside of the cap of the heel which mark did not go clear across but past the center. It was deeper on the right side.

Plaintiff's son, who examined the steps shortly after her fall testified that he examined the second step from the bottom and found...