Sullivan v. S. S. Kresge Co.

• Decision Date: 25 May 1942
• Parties: MRS. ALICE SULLIVAN, RESPONDENT, v. S. S. KRESGE COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

163 S.W.2d 811

236 Mo.App. 1191

MRS. ALICE SULLIVAN, RESPONDENT, v. S. S. KRESGE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

May 25, 1942

Appeal from Jackson Circuit Court.--Hon. Marion D. Waltner, Judge.

AFFIRMED.

Judgment affirmed.

Henry L. Jost, Roger C. Slaughter and Frank O. Knight for appellant.

(1) The court erred in refusing to sustain defendant's demurrer to the evidence offered at the close of plaintiff's case and in refusing to sustain defendant's demurrer to the evidence offered at the close of all the evidence. (a) Plaintiff's testimony convicts her of contributory negligence as a matter of law. Heidland v. Sears Roebuck & Co., 233 Mo.App. 874, 110 S.W.2d 795; Dempsey v Horton, 337 Mo. 379, 84 S.W.2d 621; Lindquist v. S S. Kresge Company et al., 345 Mo. 849, 136 S.W.2d 303. (b) Plaintiff's evidence shows that the condition of the step was merely a worn condition, and was obvious and just as apparent to, or readily discoverable by the plaintiff as the defendant. Lappin v. St. Louis National League Baseball Club, 33 S.W.2d 1025; Myers v. Strauss, 264 S.W. 801; Mullin v. Sensenbrenner Merc. Co., 260 S.W. 982; 33 A. L. R. 176. (c) The evidence fails to show that the condition of the step complained of was not reasonably safe; fails to show that the defendant had any knowledge of such condition, and fails to show that the defendant knew, or in the exercise of reasonable care should have known, it was not reasonably safe, and have anticipated that someone was likely to be injured by reason thereof. Mann v. Pulliam et al., 344 Mo. 543, 127 S.W.2d 426; Long v. F. W. Woolworth Co., 232 Mo.App. 417, 109 S.W.2d 85; O'Malley v. City of St. Louis, 343 Mo. 14, 119 S.W.2d 795; Maxwell v. Kansas City, 227 Mo.App. 224, 52 S.W.2d 487; Lundahl v. Kansas City (Mo. App.), 209 S.W. 564; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562. (2) The court erred in giving and reading to the jury, plaintiff's instruction marked "1." Lappin v. St. Louis National League Baseball Club, 33 S.W.2d 1025; Myers v. Strauss, 264 S.W. 801; Mullin v. Sensenbrenner Merc. Co., 260 S.W. 982, 33 A. L. R. 176; Mann v. Pulliam et al., 344 Mo. 543, 127 S.W.2d 426; Long v. F. W. Woolworth Co., 232 Mo.App. 417, 109 S.W.2d 85; O'Malley v. City of St. Louis, 343 Mo. 14, 119 S.W.2d 795; Maxwell v. Kansas City, 227 Mo.App. 224, 52 S.W.2d 487; Lundahl v. Kansas City (Mo. App.), 209 S.W. 564; Taylor v. Kansas City, 342 Mo. 109, 112 S.W.2d 562. (b) Instruction number "1" is fatally erroneous. 20 R. C. L. 12, Note 18; Long v. F. W. Woolworth Co., 232 Mo.App. 417, 109 S.W.2d 85; Mann v. Pulliam et al., 344 Mo. 543, 127 S.W.2d 426.

C. R. Leslie, Jesse I. Moritz and Walter A. Raymond for respondent.

(1) The trial court committed no error in overruling the demurrers to the evidence and submitting the issues to the jury. Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104, 112; Kleinlein v. Foskin, 321 Mo. 887, 13 S.W.2d 648, 655; Bankhead v. First Nat. Bank in St. Louis, 137 S.W.2d 594, 597; Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533, 537; Cento v. Security Bldg. Co., 99 S.W.2d 1, 6; McFetridge v. Kurn, 125 S.W.2d 912, 918; Winters v. Hannenbusch, 89 S.W.2d 546, 550; Savona v. May Department Stores Co., 71 S.W.2d 157, 159; Heidland v. Sears Roebuck & Co., 233 Mo.App. 874, 110 S.W.2d 795, 801; Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621, 625-626. (b) The issue of defendant's negligence was for the jury. Long v. F. W. Woolworth, 232 Mo.App. 417, 109 S.W.2d 85, 88; Stewart v. George B. Peck Co., 234 Mo.App. 864, 135 S.W.2d 405, 408, 410; Sullivan v. Union Electric Light & Power Co., 331 Mo. 1065, 56 S.W.2d 97, 104; Young v. Bacon (Mo. App.), 183 S.W. 1079, 1082; Griffith v. Continental Casualty Co., 299 Mo. 426, 253 S.W. 1043, 1047; Lewis v. National Bellas Hess, 152 S.W.2d 674, 676; Taylor v. Kansas City, 112 S.W.2d 562, 564; Mastin v. Emery, Bird, Thayer Dry Goods Co., 140 S.W.2d 720; State ex rel. Emery, Bird, Thayer Dry Goods Company v. Shain, 154 S.W.2d 775. (2) The court committed no error in giving plaintiff's Instruction No. 1. Lithegner v. City of St. Louis, 125 S.W.2d 925, 933; Setzer v. Ulrich, 90 S.W.2d 154, 158.

OPINION

CAVE, J.

This is an appeal from a judgment rendered in the Circuit Court of Jackson County in favor of plaintiff and against defendant in the sum of $ 2500 for personal injuries suffered by the plaintiff while in defendant's store as a customer and invitee.

Appellant (defendant) urges but two grounds of error: (1) The refusal of the court to sustain its demurrer to the evidence, because

"(a) Plaintiff's own testimony convicts her of contributory negligence that bars her recovery as a matter of law;

"(b) Plaintiff's evidence shows that the condition of the step was merely a worn condition, and was obvious and just as apparent to, or readily discoverable by the plaintiff as the defendant;

"(c) The evidence fails to show that the condition of the step complained of was not reasonably safe; and that defendant had any knowledge of such condition."

(2) Plaintiff's Instruction No. 1 was erroneous, because

"(a) It permits the jury to find for the plaintiff and against the defendant on facts which, even if true, would not render the defendant legally liable;

"(b) Because said instruction does not require the jury to find that defendant knew, or should have known, that the condition complained of was unsafe and dangerous."

For convenience, we will refer to the parties as they were in the trial court.

In substance, the petition alleged that the defendant owned and operated a general mercantile establishment in Kansas City, and maintained stairs leading from the first to the second floor of its store; that the steps were constructed of concrete and the tread part thereof was about eleven inches wide with a six inch metal strip fastened along the forward half of said tread and flush with the front part thereof; that one of said steps had been permitted to become defective in that the concrete portion of the tread had become worn, causing a depression or cavity of a depth of about one-half inch immediately back of the metal strip and thereby causing said strip to extend above the worn surface of said concrete approximately one-half inch; that such condition was, or by ordinary care could have been, known to the defendant in time to have repaired the same; that such defective condition caused the plaintiff to catch her heel on said uneven place, and to fall and to be injured. The answer was a general denial.

The facts necessary for consideration of the demurrer may be stated as follows:

Defendant company owned and operated a retail store in Kansas City, Missouri; and the plaintiff, on the day of the alleged injury, was a customer of said store and therefore an invitee. On February 13, 1935, about midday, plaintiff entered defendant's store for the purpose of making some purchases and went from the first to the second floor on an escalator; after completing her business, she started walking down a flight of steps leading to the first floor. This stairway was from eight to twelve feet wide with a handrail down the center and a railing along each side. Plaintiff had been in the store many times and had a general idea of conditions and location of the stairway. The tread portion of the steps was ten or twelve inches wide; the rear half was of concrete and the forward half was covered with a metal plate. Plaintiff came down one flight of steps to a landing and then turned to her left and started down the flight of steps leading to the first floor. There were about seventeen or eighteen steps in this flight. When she reached the sixth or seventh step, her heel caught on something, and she was thrown down the steps to the first floor. She was wearing shoes with cuban heels, which are rather low, broad heels. When she fell, the heel of the shoe which caught was torn off. Some of defendant's employees assisted plaintiff to her feet and took her to a balcony where she telephoned her son. In going to the balcony, she observed the step where she had caught her foot and fallen. In describing the surface of the step, she sometimes referred to it as a "worn place" or "chipped place" or "a hole" or as "a depression." While her choice of words to describe the condition may not be the best or the clearest, but from a reading of her whole testimony, it is clear she was describing a condition where, by use, the concrete portion of the tread of the step had been worn below the edge or surface of the metal plate and because of that condition, the metal plate extended above the worn surface of the concrete from one-fourth to one-half inch, and that the worn surface was approximately two and one-half inches wide and extended for some distance along the surface of the step. She was clear in her testimony that it was not a "freshly chipped" place, because she said there was no fresh concrete or gravel around there, and that she did not mean that sort of a place, but that it looked like it had been worn by constant travel, and that "it had been painted over." After plaintiff fell, and while being assisted up the steps to the telephone to call her son, she testified she pointed out the place to Mr. Kennedy, floorman for the defendant, and the porter for the defendant, both of whom examined the step. The porter did not testify and Mr. Kennedy, whose deposition was read, when asked whether he had noticed the condition of the step, stated:

"I didn't make any examination of them; the only thing I know is just as to the cleanliness of them. I notice that occasionally if I happen to be going over them."

In describing the manner she came down the steps, the plaintiff testified:

"I was just walking--just coming down, just...