Varner v. Kroger Grocery & Baking Co.

• Citation: 75 S.W.2d 585
• Decision Date: 08 November 1934
• Docket Number: No. 22915.,22915.
• Court: Court of Appeal of Missouri (US)
• Parties: VARNER v. KROGER GROCERY & BAKING CO.

75 S.W.2d 585

VARNER v. KROGER GROCERY & BAKING CO.

No. 22915.

St. Louis Court of Appeals. Missouri.

November 8, 1934.

Rehearing Denied November 23, 1934.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be published in State Reports."

Action by Clara Varner against the Kroger Grocery & Baking Company. Judgment for plaintiff, and defendant appeals.

Reversed.

Jones, Hocker, Sullivan, Gladney & Reeder, of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries received by plaintiff in an accident which occurred in defendant's grocery store at 1028 Park avenue, St. Louis.

The petition charges that defendant negligently suffered and permitted a banana and the slippery substance thereof to be and remain on the floor of its grocery store, so that plaintiff, while in said store as a customer, was caused to slip and fall on the floor, whereby she was injured.

The answer is a general denial.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $3,000, and defendant appeals.

Defendant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence.

The store where the accident occurred was a small grocery store. There were three clerks in the store, one of whom was the manager of the store, at the time of the accident. Two of the clerks were at the grocery counter and one at the meat counter. They were behind the counters engaged in waiting on customers. The banana on which plaintiff slipped and fell was close to the grocery counter. There is no evidence that either of the clerks was in a position to see, or did see, the banana on the floor before the accident.

Plaintiff testified as follows: "I went into the store with Izetta Johnson, a lady friend of mine. We went to the meat counter when we went into the store. We were at the meat counter four or five minutes. We then went to the grocery counter. I did not see anything on the floor at any time. I could not say just how far it is, the way we had to go from the meat counter to the grocery counter. There was a counter in the middle of the store, and we just walked around this counter to the grocery counter. We waited at the grocery counter about five minutes. About three or four minutes was spent in waiting on me at the grocery counter. After I got my change I turned around to leave the store and slipped and fell. I had just turned around and taken one step when I fell. After I fell the manager came around and picked up a part of a banana. My lady friend helped me up. The manager came around and helped me to the back of the store. He talked to my lady friend. I heard the conversation. He asked the lady if I slipped and fell on that banana. At that time she had me up to my knees, and he was picking up the banana in his hand and had it in his hand. My lady friend replied: `She fell on that; that is a poor way to keep a store. It looks like you could keep it cleaner than that.' He said: `We were so busy in the store we did not have time to clean it.' He helped me to the back of the store, and took the banana and threw it outside."

Izetta Johnson testified, for the plaintiff, as follows: "I went into the Kroger store with Mrs. Varner about five o'clock in the afternoon. As we got into the store I saw a banana on the floor lying by the grocery counter. It was just a half of a banana. We went to the meat counter first and stayed there about five minutes. There was a row of tables or vegetable counter in the center of the store. We walked from the meat counter around the vegetable counter to the grocery counter. We were at the grocery counter about three or four minutes before we were waited on and about five minutes longer while the clerk was waiting on us. Altogether we were about fourteen or fifteen minutes in the store when this accident happened. There were seven or eight people in the store standing by the counters, the meat counter and the grocery counter. After Mrs. Varner got her change she started to make a turn, and after she made the turn she fell. I saw what she slipped on. It was a banana. I could see marks where she slipped on the floor. The manager came around and picked her up. After he picked her up, he asked me if she fell on the banana, and I said `yes.' I asked him why he did not keep the store clean, and he said he was sorry but he was so busy he did not have time to clean it up."

Michael Sedlecek testified, for defendant, that he was in the grocery store engaged in his work as meat cutter at the time of the accident; that he did not see the plaintiff fall and did not make any examination of the floor; that there were no bananas located in that portion of the store by the grocery counter on that day; that of his own knowledge he knew nothing about the accident.

Elmer De Grendele testified, for defendant, as follows: "I was a clerk in the Kroger store on the day of the accident. I was working at the grocery counter toward the back of the store about eighteen feet from where the lady fell. I did not see anything only when Mr. Goetz, the manager, was helping the lady back in the rear. I heard no conversation between the lady and the manager. My duties were to keep the store clean and to wait on customers. I had regular times to sweep the floor. They were eight, twelve, four, and six o'clock. This accident happened some time between four and six. I...