Strickland v. F. W. Woolworth & Co.

• Decision Date: 04 April 1910
• Citation: 143 Mo. App. 528,127 S.W. 628
• Court: Missouri Court of Appeals
• Parties: STRICKLAND v. F. W. WOOLWORTH & CO.

127 S.W. 628

143 Mo. App. 528

STRICKLAND v. F. W. WOOLWORTH & CO.

Springfield Court of Appeals. Missouri.

April 4, 1910.

Rehearing Denied May 3, 1910.

1. MASTER AND SERVANT (§ 286) — INJURIES TO SERVANT — ACTIONS — QUESTION FOR JURY — NEGLIGENCE OF MASTER.

In an action against an employer for injuries by falling downstairs in going to the basement of the building, evidence held to make it a jury question whether defendant was negligent in maintaining the stairway in the manner it was constructed and in lighting it.

2. MASTER AND SERVANT (§ 285) — INJURIES TO SERVANT — ACTIONS — QUESTION FOR JURY — CAUSE OF INJURY.

In an action against an employer for injuries by falling down a stairway in going to the basement of a store building, whether the steep and narrow steps and slippery condition of the stairway caused the accident held a jury question.

3. MASTER AND SERVANT (§ 265) — INJURIES TO SERVANT — ACTIONS — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF.

The burden is upon the employer in a servant's injury action to prove contributory negligence; it being presumed that plaintiff used due care until there is evidence tending to prove the contrary.

4. MASTER AND SERVANT (§ 289) — INJURIES TO SERVANT — ACTIONS — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

In an action against an employer for injuries sustained by falling downstairs while going to the basement of the building, whether plaintiff was guilty of contributory negligence in not turning on an electric light on descending was a jury question.

5. MASTER AND SERVANT (§ 226) — INJURIES TO SERVANT — ASSUMPTION OF RISK — MASTER'S NEGLIGENCE.

The servant does not assume risks caused by the master's negligence; such rule not restricting the rule prohibiting recovery where the risk is so obviously dangerous that an ordinarily prudent person would not expose himself to it, as the latter rule is based upon contributory negligence, and not assumption of risk.

6. MASTER AND SERVANT (§§ 101, 102) — INJURIES TO SERVANT — DUTY TO FURNISH SAFE PLACE OF WORK.

The master must furnish a servant with a reasonably safe place of work.

7. MASTER AND SERVANT (§ 100) — INJURIES TO SERVANT — CONTRACTS AGAINST NEGLIGENCE — VALIDITY.

An employer cannot contract against liability for his own negligence.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by Maud Strickland against F. W. Woolworth & Co. Judgment for plaintiff, and defendant appeals. Affirmed.

Sebree, Farrington, Pepperdine & Wear and Warner, Dean, McLeod & Timmonds, for appellant. W. D. Tatlow and Joe B. Tatlow, for respondent.

COX, J.

Plaintiff was employed by defendant as saleslady in what is known as the "Five and Ten Cent Store" on the west side of the Public Square in the city of Springfield, and on the ___day of March, 1908, was directed by her manager to go to the basement of the building to see about some goods sold that had not been delivered. In passing down the stairway to the basement she fell and was injured. It is charged in her petition that the injury was caused by the negligence of the defendant in not providing a safe stairway by which she might pass to the basement. The complaint is that said stairway was "in a dangerous and unsafe condition, in this: that said steps were steep, narrow, dark, and slippery, and without handrails or protection on either side; * * * that because of the unsafe construction, and of the steep, slippery, and dark condition of said steps, she slipped on the first or top step and fell, and was unable to catch herself, and was injured in the fall." The answer was a general denial and plea of contributory negligence. Trial was had before a jury, resulting in a verdict for plaintiff for $1,500, and defendant has appealed.

The evidence shows that the stairway was located under a stairway that leads from the first to the second floor of the building; that the entrance to the stairway was dark; that an electric light bulb was placed therein for the purpose of lighting the entrance to the stairs, and plaintiff testified that for a long time prior to the injury this light had been kept turned on, but that shortly prior to the injury she had seen the manager turn it off, and she understood that it was his desire that it should be kept off, although no instructions were given in that regard. The stairs were steep, the steps narrow, and were kept oiled for the purpose of preventing dust, and were also without handrails. The substance of plaintiff's testimony is that she had worked at the store for some 11 months; that she and other clerks, some 20 or 25 in number, frequently passed up and down this stairway to and from the basement; that she was entirely familiar with it and had used it every day during the time aforesaid; that on the occasion of the accident she had been directed to go to the...