Summa v. Morgan Real Estate Co.

• Decision Date: 29 July 1942
• Docket Number: 37979
• Citation: 165 S.W.2d 390,350 Mo. 205
• Parties: Hansi Summa v. Morgan Real Estate Company, a Corporation, Appellant
• Court: Missouri Supreme Court

165 S.W.2d 390

350 Mo. 205

Hansi Summa v. Morgan Real Estate Company, a Corporation, Appellant

No. 37979

Supreme Court of Missouri

July 29, 1942

Rehearing Denied September 8, 1942. Motion to Transfer to Banc Overruled November 12, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Affirmed (subject to remittitur).

John F. Evans for appellant.

(1) The dangerous condition of the premises was not created by defendant, the situation was open and obvious to anyone in the exercise of ordinary care, and the entire evidence clearly points to the negligence of plaintiff rather than of defendant as the proximate cause of the injury. Robinson v. A. & P. Co., 347 Mo. 421, 147 S.W.2d 648; Murray v. Ralph D'Oench Co., 347 Mo. 365, 147 S.W.2d 623; Pellett v. Garland, 152 S.W.2d 172, same, 116 S.W.2d 189; Boyd v. Logan Jones D. G. Co., 340 Mo. 1100 104 S.W.2d 348; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; McKeighan v. Kline's, Inc., 339 Mo 523, 98 S.W.2d 555; Reddy v. Garavelli, 232 Mo.App. 226, 102 S.W.2d 734. (2) Plaintiff was clearly guilty of contributory negligence as a matter of law in failing to observe the store clerk in the act of mopping the floor, when to look was to see the situation in time to avoid the danger. Mullen v. Sensenbrenner, 260 S.W. 982; Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; Heidland v. Sears Roebuck Co., 233 Mo.App. 874, 110 S.W.2d 795; Cates v. Evans, 142 S.W.2d 654. (3) Having introduced the testimony of the witness Holt, plaintiff is bound by his uncontradicted statements, including the fact that he warned plaintiff of the slick spot on the floor. Draper v. L. & N. Rd. Co., 348 Mo. 886, 156 S.W.2d 626; Rodan v. St. L. Transit Co., 207 Mo. 392, 105 S.W. 1061; Cook v. St. J. Ry., L., H. & P. Co., 232 Mo.App. 313, 106 S.W.2d 38; Costello v. Pitcairn, 116 S.W.2d 257; Klotsch v. Collier & Son, 349 Mo. 40, 159 S.W.2d 589. (4) Plaintiff cannot seek the aid of favorable inferences from her own testimony which are directly contrary to the undisputed facts contained in Holt's testimony, for inferences must fail upon proof of facts which are inconsistent with such inferences. Rodan v. Transit Co., supra; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31; George v. Mo. Pac. Rd. Co., 213 Mo.App. 668, 251 S.W. 729; Raw v. Maddox, 230 Mo.App. 515, 93 S.W.2d 282; Pennsylvania Rd. Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819, 53 S.Ct. 391. (5) Neither can plaintiff piece out her own testimony with segregated parts of Holt's testimony to make a case. Elkin v. St. L. Pub. Serv. Co., 335 Mo. 951, 74 S.W.2d 600; Pentecost v. Wabash Rd. Co., 334 Mo. 572, 66 S.W.2d 533; State ex rel. Weddle v. Trimble, 331 Mo. 1, 52 S.W.2d 864; Long v. Binnicker, 228 Mo.App. 193, 63 S.W.2d 831; Costello v. Pitcairn, 116 S.W.2d 257. (6) Plaintiff's Instruction 1 is prejudicial and erroneous. It not only is contrary to the established law and in direct conflict with instructions 4 and 5, but it is a roving commission to the jury to impose liability upon any personal ideas the jury might evolve concerning defendant's alleged failure "to have given plaintiff a sufficient warning" or "to have restrained plaintiff." Cases under Point (1); Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Hutchison v. St. L.-S. F. Ry. Co., 335 Mo. 82, 72 S.W.2d 87. (7) The verdict is excessive. Christiansen v. St. L. Pub. Serv. Co, 333 Mo 408, 62 S.W.2d 828; Myrzek v. Terminal Ry. Co., 341 Mo. 1054, 111 S.W.2d 26; Perkins v. Terminal Ry. Co., 340 Mo. 868, 102 S.W.2d 915; Carson v. K. C. Terminal Ry. Co., 123 S.W.2d 133; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463.

Everett Hullverson for respondent; Orville Richardson of counsel.

(1) Appellant in its brief has failed to give to plaintiff the benefit of that evidence and those inferences to be drawn therefrom most favorable to her. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Sullivan v. Union Electric L. & P. Co., 331 Mo. 1065, 56 S.W.2d 97. (2) The doctrine of Paubel v. Hitz and similar cases is inapplicable here since in all of those cases the injured party testified that he or she saw the condition involved and knew or appreciated the dangers attendant thereon. (3) Plaintiff stopped at the counter to make a purchase, and while there Holt began to mop the floor. The fact that there was not much dressing; that it was colored the same as the floor; that other people were moving in the aisle; that Holt had his back to plaintiff and concealed the spot from her; that plaintiff's attention was focused upon the vegetable display, and that Holt failed to warn plaintiff, but instead stood aside and pulled his mop away so that plaintiff could walk into the dressing, all demonstrate that the condition was not obvious, and that appellant was negligent. Blackwell v. J. J. Newberry Co., 156 S.W.2d 14; State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Long v. F. W. Woolworth Co., 159 S.W.2d 619; State ex rel. Elliott's Dept. Stores v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Judson v. American Ry. Express Co., 242 Mass. 269, 136 N.E. 103; Eisenberg v. Irving Kemp, Inc., 256 A.D. 698, 11 N.Y.S. (2d) 449; Amsterdam v. Hotel Astor, 130 Misc. 656, 224 N.Y.S. 273; Thogmartin v. Koppel, 145 Kan. 347, 65 P.2d 571; Hamilton v. Union Public Market, 15 Cal.App.2d 340, 59 P.2d 459; Hechler v. McDonnell, 42 Cal.App.2d 515, 109 P.2d 426; Simpson v. Mary Lee Candies, Inc., 2 Negligence Cases 756. (4) Plaintiff's testimony that she heard no warning, although her hearing was good and she was in a position to hear a warning if one had been given was negative evidence sufficient under the circumstances to be of probative value in establishing that no warning was given. Sing v. St. Louis-S. F. Ry. Co., 30 S.W.2d 37; Toeneboehn v. St. Louis-S. F. Ry. Co., 317 Mo. 1096, 298 S.W. 795; Stotler v. C. & A. Ry. Co., 200 Mo. 107, 98 S.W. 509; Dodd v. Terminal Railroad Assn. of St. Louis, 108 S.W.2d 982; Rosanbalm v. Thompson, 148 S.W.2d 830; McMillan v. Israel, 30 S.W.2d 626. (5) Since Holt's testimony that he spoke a warning was disputed by plaintiff's testimony, then this portion of Holt's evidence did not bind the plaintiff since the jury was at liberty to believe part of Holt's testimony and disbelieve that part which conflicted with plaintiff's evidence. McCall v. Thompson, 348 Mo. 795, 155 S.W.2d 161; Jones v. C., R. I. & P. Ry. Co., 341 Mo. 640, 108 S.W.2d 94; Smith v. K. C. Pub. Service Co., 328 Mo. 979, 43 S.W.2d 548; Gould v. C., B. & Q. Ry. Co., 315 Mo. 713, 290 S.W. 135. (6) Plaintiff was not contributorily negligent as a matter of law. The evidence and argument considered under the first heading hereof demonstrate this point. Long v. F. W. Woolworth Co., 159 S.W.2d 619; State ex rel. Elliott's Dept. Store v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Blackwell v. J. J. Newberry Co., 156 S.W.2d 14; Rice v. Rosenberg, 266 Mass. 520, 165 N.E. 667; Ralston v. Merritt, 117 Pa.Super. 487, 178 A. 159; Walz v. Helfer, 286 N.Y. 408, 36 N.E.2d 640; Berwald v. Turner, 52 S.W.2d 112. (7) Plaintiff's Instruction 1 was neither erroneous nor prejudicial. It was based upon the evidence, correctly declared the law and confined the jury to the evidence. (a) The phrase "sufficient warning" has a clear, definite and restricted meaning and did not give the jury a roving commission. Herrington v. Hoey, 345 Mo. 1108, 139 S.W.2d 477; Olney v. K. C. Pub. Service Co., 19 S.W.2d 534; Engelman v. Met. St. Ry. Co., 133 Mo.App. 514, 113 S.W. 700; Ward v. Mo. Pac. Ry. Co., 311 Mo. 92, 277 S.W. 908; State v. Ellis, 74 Mo. 207; Nissen v. Miller, 44 N.M. 487, 105 P.2d 324. (b) It was Holt's duty to adopt all reasonable means available to avoid plaintiff's injury. This included a duty of restraining plaintiff as well as warning her. He could have remained in her path or placed a hand upon her shoulder or thrust an arm in front of her and thus have restrained her from walking into the oily spot by diverting her away from it. Instead, he stepped aside, inviting her to walk into the slick dressing. (c) In any event, no prejudicial error was committed, since defendant obtained two instructions submitting its own duty to warn "or otherwise prevent" plaintiff from being injured. Having joined in submission of the issue, appellant cannot complain. Evans v. A., T. & S. F. Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562. (d) If there was conflict between plaintiff's instruction and appellant's instructions 4 and 5, appellant is in no position to complain of such conflict, since plaintiff's instruction correctly declares the law. Scott v. Mo. Pac. Ry. Co., 333 Mo. 374, 62 S.W.2d 834; Simmons v. Wells, 323 Mo. 882, 20 S.W.2d 659; Krelitz v. Calcaterra, 33 S.W.2d 909. (8) The court did not err in admitting evidence of what Holt did, i.e., that he kept his hands on the mop and did not point out the slick spot or restrain plaintiff. Nor did the court err in permitting counsel to argue that a warning must be sufficiently loud to be heard. (Appellant makes no argument under these assignments except that based upon its propositions of law under its assignment No. 1.) Cases cited under Point (1), supra. (9) The verdict was not excessive. (a) The verdict for these injuries and damages should be affirmed, since: The jury's discretion, approved by the trial judge, was not "clearly abused" (Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115, 121 [4]); the judgment did not go "unmistakably beyond the bounds of reason" (Capstick v. T. M. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480, 485 [6]); the injuries were such that lay jurors could not determine their extent by observation (Philibert v. Benjamin Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797, 804 [15, 16]); the award was not "so...