Tribout v. Kroger Grocery & Baking Co.

• Decision Date: 20 November 1945
• Docket Number: No. 26888.,26888.
• Citation: 191 S.W.2d 261
• Parties: TRIBOUT v. KROGER GROCERY & BAKING CO.
• Court: Missouri Court of Appeals

191 S.W.2d 261

TRIBOUT v. KROGER GROCERY & BAKING CO.

No. 26888.

St. Louis Court of Appeals. Missouri.

November 20, 1945.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be reported in State Reports."

Action by Elva Tribout against Kroger Grocery & Baking Company to recover damages for injuries sustained in a fall in defendant's store. Verdict and judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Wayne Ely, of St. Louis, for appellant.

Mark D. Eagleton and Donald Gunn, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

The petition alleges that while plaintiff was a customer in defendant's store she was caused to fall and be injured, "due to the negligence of the defendant in causing, suffering and permitting an onion and onion skin to be in and upon said floor at a place used for customers and which was then and there being used by the plaintiff as a customer of said defendant, all of which rendered said place and store dangerous and unsafe and not reasonably safe for the purposes aforesaid and the defendant was thus and thereby guilty of negligence in failing to exercise ordinary care to furnish and provide the plaintiff a reasonably safe place in which to stand and walk while transacting her business as aforesaid."

Defendant's amended answer, filed during the trial by leave of court, denied plaintiff's allegations of negligence and pleaded that plaintiff was guilty of contributory negligence in failing to notice or pay attention to onions on the floor and in failing to look where she walked and stepped and placed her feet.

It will not be necessary to notice the pleadings or evidence as to injury, because no point is made as to the amount of the verdict, and no claim that the judgment is excessive.

The testimony of plaintiff was as follows: On Saturday, April 29, 1944, she was a customer in defendant's store. She wanted to buy a ham, and as she walked along the aisle to the meat counter she noticed that the floor was clean, and that there was no debris or foreign matter of any kind on the floor. She bought an eight-pound ham and gave the butcher $5. While she was waiting for her change she heard a noise in back of her, and looked around and saw one of the clerks dumping onions in a bin behind her. Some of the onions rolled out of the bin and scattered over the floor. Then the butcher gave her her change and "I taken my change and I started to take a step back and look at the floor, and when I did, I stepped on some hard surface (substance) and at that time I was tripped." She said she "stepped back" with her right foot; her foot came in contact with an onion and slipped, causing her to fall. After she fell she noticed an onion that "was kind of mashed" about eight or nine inches in front of her foot. She had seen the clerk dumping onions out of a sack into a bin on the floor, and saw four or five of them fall over the bin and onto the floor, and scatter and roll along the floor.

After she fell, she was assisted to her feet by a customer and one of the butchers or clerks, and taken to a box at the back of the store, where she sat down. The butcher or clerk asked what she fell on and she said "an onion," and the customer who helped take her to the back of the store said he would go back and see if he could find what she fell on. When he returned he handed something to the said employee and said, "It is paper." She said, "I thought it was an onion." She thought the Kroger man put the object in his pocket. She said there was nothing at the place where she fell except the onion. The store manager came shortly afterward, and he and another employee took her to St. Luke's Hospital. That was around 10 o'clock Saturday morning, and she left the hospital Monday afternoon. Her arm was broken, and at the hospital it was set and placed in a cast.

There was testimony dealing with plaintiff's injuries, treatment and loss of earnings, but since no point is being made with reference to the size of the judgment, we will not comment on that testimony.

Plaintiff further testified that she was positive that what she stepped on when she "made this turn" was an onion, and that she saw a man with an apron on pouring onions into the bin. On cross-examination, plaintiff reiterated that she noticed that the floor was clean as she walked down the aisle to the meat counter and said there was plenty of light in the store for her to see that. While she was waiting for her change at the meat counter she heard the noise of something being dumped into the bin. The bin was "kind of at the back of" plaintiff, and about eight or nine feet behind her. When she heard the noise she looked around and saw at least four or five onions spilled out on the floor back of her. She continued to wait at the counter for her change, and when the butcher handed it to her she put "my money in my coin purse and I thought I would turn on one foot and step back with my right.

"Q. You stepped back with your right foot? A. Kind of backward, yes; not really back.

"Q. And stepped on one of those onions? A. Yes."

When the onions rolled out on the floor plaintiff noticed that "they all scattered, but she didn't watch where they were scattered, because her attention was called to her change.

"Q. You didn't pay any attention to where they scattered? A. No, sir, I couldn't look at those and get my change.

"Q. I say, you didn't pay any attention to that? A. No, I didn't.

"Q. And they just rolled, and they did roll in different directions? A. Yes, sir.

"Q. Evidently one of them rolled right towards you? A. It seems that way.

"Q. But you didn't look or expect it there, so you didn't look for it when you stepped backward, did you? A. Well, I went to look, I turned on my left foot, taken a step back, and I was going to step forward, and when I did I realized I had stepped on something and I was going down".

On behalf of defendant six employees and a customer who was in the store at the time testified that they examined the spot where plaintiff fell immediately after her fall and could find no onions on the floor.

Appellant lists nine assignments of error, each of which goes to the one contention stressed by appellant, i. e., that the evidence shows plaintiff to have been guilty of contributory negligence as a matter of...