Vogrin v. Forum Cafeterias of America, Inc.

• Decision Date: 09 December 1957
• Docket Number: No. 46328,No. 1,46328,1
• Parties: Saraphin VOGRIN, Appellant, v. FORUM CAFETERIAS OF AMERICA, Inc., Respondent
• Court: Missouri Supreme Court

Page 617

308 S.W.2d 617

Saraphin VOGRIN, Appellant, v. FORUM CAFETERIAS OF AMERICA, Inc., Respondent.

No. 46328.

Supreme Court of Missouri, Division No. 1.

Dec. 9, 1957.

Rehearing Denied Jan. 13, 1958.

Charles M. Miller, Kansas City, for appellant and plaintiff.

Norman S. Howell and John A. Weiss, Howell, Rayburn & Sanders, Kansas City, for respondent.

HYDE, Judge.

Action for $20,000 damages for personal injuries. Plaintiff had verdict and judgment for $1,000. Defendant's motion to set aside verdict and judgment and enter judgment for defendant in accordance with its motion for directed verdict was sustained and judgment was entered for defendant. Plaintiff's motion for new trial, one of the grounds being inadequate damages, was overruled. Plaintiff appealed to the Kansas City Court of Appeals but the case was transferred here (Vogrin v. Forum Cafeterias of America, Mo.App., 301 S.W.2d 406) because plaintiff's claim of inadequacy of the verdict made the amount involved more than $7,500.

Plaintiff was injured by falling on the sidewalk in front of the Forum Cafeteria in Kansas City. The principal issues are whether plaintiff made a case for the jury and, if so, whether the verdict is inadequate.

Plaintiff was an operator for the Southwestern Bell Telephone Company and had been employed there for 30 years. She had worked on Sundays from 7:00 a.m. to 4:00 p.m. for sometime and had been eating breakfast at the Forum (which opened for serving at 6:15 a.m.), before going to work, for about two years. On Sunday, August 16, 1953, plaintiff drove downtown and parked her car on the opposite side of the street from the Forum, about 6:10 a.m. On her way (about 5:30 a.m.) she stopped to go to church and it rained hard while she was in the church. It rained more as she drove to the Forum; she got out of her car (leaving her hat in the car to keep it from getting wet) and crossed the street, reaching the sidewalk south of the Forum. When she reached the Forum sidewalk, she was under an awning and stopped to see how wet she was. She said: 'I just looked down and shook my dress to see how wet I was. * * * I went to put my left foot out and I felt it slip and that is the last I remember. Both feet went at the same time.' Plaintiff said she was wearing oxfords with rubber heels about 2 1/2 inches high. She said 'the slickness and wetness of the pavement' caused her to fall. She said she did not see any hole or any cracked or uneven spots in the sidewalk nor any debris or mud. She also testified: 'Q. Mrs. Vogrin, I merely asked you, did you know what caused you to slip? A. No, sir. Other than the sidewalk was wet.' After plaintiff fell and while waiting for an ambulance, she saw men go out and put rubber mats down on the sidewalk.

The whole sidewalk in front of the Forum was terrazzo and was built by defendant in 1938. It was in the heart of the business district and was a much travelled sidewalk, both day and night. It had a slope of 11 inches in the 17 feet 6 inches from the entrance door to the south edge of the building, amounting to a slope of 62/100 of an inch per foot. This slope followed the slope of the entire sidewalk from Twelfth Street to Thirteenth Street. Plaintiff's witness, who measured this slope, said: 'Terrazzo pavement consists of marble chips or pieces of marble which are set into cement and then ground to polish them. * * * It is a highly polished surface and for that reason being very smooth can be slick.' He said that rain water does tend to accentuate the slickness. However, he said he did not know anything about its abrasive content (alundum); that alundum could be used to produce a non-slick surface; that he never examined the composition of defendant's terrazzo sidewalk, and that he did not know whether it was or was not slick. Defendant's manager, called as a witness by plaintiff, testified that defendant's terrazzo sidewalk had various colors in it and had its name in large letters in terrazzo opposite the entrance; that it was never polished but was cleaned occasionally with a soapless detergent; that it was flushed every night with water and drymopped to pick up the water; and that it was swept three times daily. He also said defendant had rubber mats (50 foot lengths) which were originally used for sleet and icy weather but they later got in the practice of using them in rainy weather; that 'if it looked like it was raining for any extended period we put down the rubber mats'; and that the mats gave more secure footing and better traction. These mats were kept in the basement of defendant's cafeteria. About three months after plaintiff fell asphalt was laid over the terrazzo, but the manager said this was done because the terrazzo had worn through to the concrete base at the door and it cost less to lay asphalt than to re-terrazzo the whole surface. Plaintiff also had testimony of two witnesses who had slipped on defendant's sidewalk, during the same year, when it was not raining. Defendant's evidence and the medical testimony will be hereinafter stated.

The trial court's ruling that plaintiff did not make a jury case was based on our decisions in Schmoll v. National Shirt Shops, 354 Mo. 1164, 193 S.W.2d 605 and Fletcher v. North Mehornay Furniture Co., 359 Mo. 607, 222 S.W.2d 789. Plaintiff, although making the claim that the sidewalk was a nuisance, relies on the following negligence cases involving terrazzo surfaces, namely: Cardall v. Shartenberg's, Inc., 69 R.I. 97, 31 A.2d 12; Erickson v. Walgreen Drug Co., 120 Utah 31, 232 P.2d 210, 31 A.L.R.2d 177; Brody v. Albert Lifson & Sons, 17 N.J. 383, 111 A.2d 504; Grant Co. v. Karren, 10 Cir., 190 F.2d 710; Barker v. Silverforb, Mo.App., 201 S.W.2d 408. On the claim of nuisance, plaintiff cites Boyle v. Neisner Bros., 230 Mo.App. 90, 87 S.W.2d 227. However, that was a case of a permanent obstruction of a public sidewalk by a heavy door, which swung out over about a third of the sidewalk in a congested area much used by the public, held to be inherently dangerous. We discussed the principles involved in determining the question of nuisance in Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485. (See also Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080; State ex rel. W. E. Callahan Const. Co. v. Hughes, 348 Mo. 1209, 159 S.W.2d 251.) We pointed out that "negligence' is the failure to exercise the degree of care required by the circumstances', while 'a 'nuisance' does not rest on the degree of care used, but on the degree of danger existing with the best of care'; and that 'there must, however, be a degree of danger (likely to result in damage) inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care in its use before the question of a nuisance can properly be submitted to a jury.' (55 S.W. loc. cit. 489.) We have also held that 'inherently dangerous means that danger inheres in the instrumentality or condition itself, at all times, so as to require special precautions to be taken with regard to it to prevent injury; instead of danger arising from mere casual or collateral negligence of others with respect to it under particular circumstances.' (168 S.W.2d loc.cit. 1082.) We held in the Schmoll case (193 S.W.2d loc.cit. 607) that terrazzo was not inherently dangerous and in the Fletcher case (222 S.W.2d loc. cit. 794) approved this holding. We think this must be our ruling under the evidence in this case and our conclusion is that plaintiff's evidence did not make a case of nuisance. Plaintiff's own testimony was that it was the wetness of the sidewalk that caused her to slip and her petition alleged the use of rubber mats on the walk, when it was raining, which had not been put down when she fell. Plaintiff also alleged mopping with soap and giving the walk a high polish which she did not prove. We, therefore, hold that plaintiff did not prove a nuisance case and that plaintiff's contention that she was entitled to a directed verdict on liability is without merit.

Did plaintiff make a negligence case? We think there are some important differences between this case and the Schmoll and Fletcher cases. In the Schmoll case , while it was claimed that the entire terrazzo floor of the entrance lobby was slippery when wet, it was the highly polished brass letters embedded in the floor that were dangerously slippery. The principal basis of that decision was that this lettering was obvious, 'was seen by plaintiff; and by her seen to be wet'; and that 'plaintiff had as much knowledge of the condition of the brass lettering as had defendant.' In the Fletcher case, a portion of the sidewalk in front of the defendant's store entrance was terrazzo and at the time the plaintiff fell it had been there 8 years. The amount of travel on it was not shown and there was evidence that 32 percent of nonslip material was used in its construction. The plaintiff fell on a day when it had been snowing and there was evidence of snow, sleet and ice on the ground; and we commented that neither defendant therein 'is responsible, under the facts, for any hazard added to the situation by the weather condition', distinguishing a cited Massachusetts case on that basis. We also cited and quoted from that part of the Schmoll case concluding 'there is no liability of defendant for injuries from dangers that are as obvious, or as well known to plaintiff as to defendant.' Since only the part of the sidewalk in front of the store entrance, in that case, was terrazzo, it was, no doubt, meant that the difference between it and the rest of the walk was open and obvious, but we think that rule was more applicable to the brass letters in the Schmoll case than to the sidewalk in the Fletcher case. However, in the present case the entire sidewalk was terrazzo.

In the present case, the sidewalk had been there 15 years when plaintiff fell. It had been subjected to heavy travel and, since the terrazzo was shown to have been worn through to...