Tuttle v. Kline's, Inc.

• Decision Date: 02 December 1935
• Docket Number: No. 18233.,18233.
• Citation: 89 S.W.2d 676
• Parties: MINNIE C. TUTTLE, RESPONDENT, v. KLINE'S, INCORPORATED, A CORP., APPELLANT.
• Court: Missouri Court of Appeals

89 S.W.2d 676

MINNIE C. TUTTLE, RESPONDENT, v. KLINE'S, INCORPORATED, A CORP., APPELLANT.

No. 18233.

Kansas City Court of Appeals. Missouri.

December 2, 1935.

Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

REVERSED.

Harry G. Kyle, H.G. Pope and Hume & Raymond for respondent.

Henry S. Conrad, L.E. Durham, Hale Houts, I.M. Lee and Wright Conrad for appellant.

SHAIN, P.J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1500. Defendant has appealed.

The facts show that plaintiff was injured on December 19, 1931, while attempting to leave the place of business of the defendant, a large retail establishment in Kansas City, through a revolving door. This door consisted of four wings or panels fastened to a vertical shaft. The wings were curved in the forward direction of the movement of the door, which was to the right. The panels were fitted with glass beginning about six inches from the top and extending to within three feet of the bottom. About midway of the door and in front of the glass in each panel were two circular horizontal rods. The wings of the door revolved in a circular enclosure or frame with an opening in the frame to the inside of the store and another to the outside for persons to pass through in leaving or entering the store. The movement of the door on the shaft was free except for the rubber weather strips on the outer edges of the wings, which pressed against the sides of the enclosure with the effect of slowing down or controlling the movement of the door as well as furnishing protection from the weather. The door was operated by people using it and could not be turned in any direction except toward the right. The evidence relating to the size of the door and the openings is not definite for the reason that the court would not permit defendant to prove the dimensions of the door on the ground that there was no claim of defective construction of the door or of a defect therein. However, defendant's offer of proof, in this connection, recites that the diameter of the circle in which the door revolved was seven feet and the entrances to the door were four feet eleven inches.

The evidence further shows that defendant advertised a sale in its store inserting a two page advertisement in the daily papers particularly advertising a sale of women's wearing apparel for the afternoon that plaintiff was injured. The streets and all of the stores on that day were crowded with customers, the time being the middle of the Christmas shopping season.

Plaintiff went to defendant's store in response to the advertisement and made two purchases of women's wearing apparel. She had two packages and her pocketbook in her left arm as she started to leave the store through the Walnut Street exit by the use of the north revolving door. There was a large crowd in the store but no crowd therein around the door as plaintiff attempted to leave. The door was practically motionless and stood with one of the wings dividing the opening, when plaintiff attempted to enter it. She started into the door, having her left arm and perhaps a part of her shoulder in the opening, when three youths (two in one compartment of the door), whom she thought to be high school boys, suddenly came rushing through the door from the outside causing it to suddenly revolve with great force, resulting in the wing of the door striking plaintiff's elbow and to throw her suddenly against the door frame or the casing. Her wrist and elbow were caught between the wing of the door and the casing, forcing her hand in so as to injure her elbow, wrist and arm.

There is a controversy between the parties as to whether there was a crowd present at the outside of the door and, if there was, whether the rushing of the youths through the door was caused by the crowd attempting to enter the store, or, was merely action on the part of the boys, unconnected with the crowd, a matter that will be hereinafter discussed.

There were several allegations of negligence pleaded in the petition but there was no evidence to support any except the one submitted in plaintiff's instruction number one. Plaintiff's theory of recovery, as disclosed by this instruction, was that as plaintiff was attempting to enter the door it was suddenly and violently pushed against her "by a large number of customers of the defendant who were rushing and crowding to enter" the store by said door and that defendant was negligent in failing to place a guard or guards at the door to "regulate the traffic through said door and to regulate the speed" thereof.

It is insisted that defendant's instruction in the nature of a demurrer to the evidence should have been given, as well as its instruction number C, which sought to tell the jury that defendant was not responsible for any injuries that plaintiff received and that were "caused by the act or acts of persons attempting to enter the door from the outside of defendant's store." It is also claimed that the court erred in giving plaintiff's instruction one. We think that defendant's contentions must be sustained. Assuming, for the purpose of disposing of this point, that plaintiff was injured by the action of a crowd of persons entering the store, rather than the independent movement or action of the boys who actually revolved the door, we are of the opinion that there is no liability in this case.

The undisputed evidence shows that the door in question was of ordinary construction and use and that, if used properly by individuals, there was nothing dangerous about it, although it was dangerous if used by persons rushing through the entrance, especially if two or more persons got into one compartment at a time, the door being constructed for the purpose of accommodating but one person in a section. It seems to be well settled that the owner or the operator of a retail mercantile establishment, such as the defendant, if it exercises ordinary care in the construction and arrangement of its premises, including the doors and entrances thereto, is not responsible for the action of crowds of customers who use such premises or doors, as it is not held to be able to anticipate that they will injure one another. It is a well known fact that a large crowd of persons enter such stores, especially during the holiday season and when special sales are advertised, gathering around the counters and other places where such sales are being conducted and that those managing such stores ordinarily have no control over such crowds. "They (crowds) are an unavoidable feature of mercantile life in large cities." [F.W. Woolworth & Co. v. Conboy, 170 Fed. 934, 935; Lord v. Sherer Dry Goods Co. (Mass.), 90 N.E. 1153; Hunnewell v. Haskell (Mass.), 55 N.E. 320; Pardington v. Abraham, 87 N.Y.S. 670, 671; Olson v. Whitthorne & Swan (Calif.), 263 Pac. 518; Buzzell v. R.H. White Co. (Mass.), 107 N.E. 385; Smith v. Johnson (Mass.), 106 N.E. 604.]

Of course, we are not intimating that a proprietor of a store who sees an unruly crowd, conducting itself in such a way as well calculated to result in injury to a customer, has no duty toward such customer, but we need say no more in this case than that he is not required to anticipate that a crowd will so conduct itself.

We have examined the cases cited by the plaintiff and find them not in point. In the case of Greeley v. Miller's, Inc. (Conn.), 150 Atl. 500, defendant advertised a sale at a certain hour in the morning. It did not open its doors at that hour in consequence of which a crowd congregated in front of the doors in a narrow entranceway with windows on each side. When the doors were finally opened the crowd, rushing into the store, broke the windows causing injury to the plaintiff, a member of the crowd. There it appears that defendant invited the public to the store but would not let them enter it or try to control the crowd. In other words there was active negligence on the part of the defendant and it could have well anticipated the injury that occurred. In the case at bar there was no interference by the defendant with the movement or action of the crowd, if any, entering the store. Plaintiff was at liberty, at the particular time in question, to or not to use the door, as she saw fit.

The case of Marquis v. Goldberg, 34 S.W. (2d) 549, involved a stepping and falling into an unguarded stairway where the visibility was poor. The cases of O'Bauer v. Katz Drug Co., 49 S.W. (2d) 1065, Myers v. K.C. Junior Orpheum Co., 73 S.W. (2d) 313 and Grubb v. K.C. Rys. Co., 207 Mo. App. 16, are not in point. The last one was a passenger and carrier case. Plaintiff cites a number of such cases. All of them might be distinguished from this one on the facts. However, it is sufficient to say that in such cases, defendant being a common carrier, owes the passenger the highest degree of care or a different degree of care than is owed a customer by the proprietor of a retail store, which is ordinary care. [Burnison v. Sounders, 225 Mo. App. 1159, 1163, 1164.]

Plaintiff sought to show that there was a practice in Kansas City relative to guarding revolving doors for the purpose of controlling crowds using them; that such guards were provided by one bank, a newspaper, a hotel, four department stores and probably a drug store and a music store. One or two witnesses, who were employed as such guards, testified that a crowd would sometimes cause the door to revolve too rapidly and, in that event, they would stop it by taking hold of it and that where large crowds were present they would regulate the use of the door. A number of witnesses testified as to the practice, in this respect, of owners or operators of seven or eight of such doors but there is no evidence tending to show as to the extent of the use of such doors in Kansas City and the testimony is indefinite as to the duty of the person stationed at some of the doors concerning which there...