Ward v. Temple Stephens Co.
| Decision Date | 11 September 1967 |
| Docket Number | No. 2,No. 52362,52362,2 |
| Citation | 418 S.W.2d 935 |
| Parties | Doris WARD, Appellant, v. TEMPLE STEPHENS COMPANY, a corporation, Respondent |
| Court | Missouri Supreme Court |
Scott O. Wright, Brown, Wright & Willbrand, Columbia, for appellant.
J. Turner Jones, Columbia, for respondent, Welliver, Porter & Cleaveland, Columbia, of counsel.
This is a suit for personal injuries arising from a fall in defendant's store in Columbia, Missouri. Plaintiff alleged that defendant had negligently 'caused, allowed and permitted' a rural mailbox to extend out into the aisle, causing her to fall. There was evidence of substantial injuries; but since the verdict was for defendant, no further reference thereto will be necessary. We have jurisdiction, since the prayer was for $30,000. The defendant denied all substantive allegations, and alleged that plaintiff's own negligence caused or contributed to her injury. Plaintiff has briefed three specific points of alleged error; defendant's first point is that no submissible case of negligence was made by plaintiff, and we shall therefore need to state the evidence in some detail.
The store was located at Business Route 70 and Garth Avenue; it faced east. It was 70 feet east and west and 180 feet north and south. The main display shelves or counters ran east and west through the store with aisles between. Some of those shelves were shorter than the others and at the ends of these defendant had set up three 'display islands' or counters running north and south with ample room (approximately six feet) to pass between these and the ends of east-west shelves. These north and south counters were approximately five feet high, about three feet wide at the bottom, and tapered to about two feet at the top. Much effort was made and much space in the transcript is consumed by both parties in attempting to develop further the exact layout of the store, but some of this evidence has been more confusing than enlightening. It will suffice for our purposes to say that the events involved here happened at the side of and perhaps extended just north of one of the north-south display counters or islands, probably the south one; and also that there was an open space south of that counter. Plaintiff, a married woman then 46 years old, entered the store at about 4:00 p.m. on December 3, 1964, picked up two small cartons of cream at the rear, and walked east down an aisle to a card display where she stopped and selected one or more cards; from that point she saw farther east the island counter in question with a display of clocks on the top shelf. She then proceeded down the aisle to the clocks, put down her cream, and proceeded to try out three of the clocks by winding the alarms (and perhaps the time mechanism) and listening to them; she estimated that she consumed ten minutes in this endeavor. As she was about ready to select one of the three, she saw a clock on the other side of the top shelf which she wanted to look at, but could not reach. In this situation, she (then facing east toward the counter) turned her body to the left and, still glancing back at the clocks and never looking down, took three or four steps along the counter at a 'normal' distance from it, hit something with her right foot or ankle and then with her left, 'started flippin' around' and fell; she landed facing in the direction from which she had come and leaning against a counter, apparently having struck the floor largely on her buttocks. She testified that she first looked down, and first saw the mailbox after her second (left) leg had struck it. All this occurred near the north end of the counter; she suffered a severe cut on her left leg, and claimed other and permanent injuries. The mailbox was in the aisle somewhere near tne end of the counter after plaintiff's fall. It was two feet or more in length and perhaps 15--18 inches high. At least one piece of crockery had been knocked from the counter and was broken in the aisle. Plaintiff was given prompt assistance and taken to a hospital. She testified that while she was looking at the clocks she did not notice anyone else around but that she 'wasn't paying any attention to anything else.' She gave no testimony whatever as to the position of the mailbox at any time before she struck it with her left foot or leg.
Another customer, Mrs. Stuart Spradling, was produced on behalf of plaintiff. Considerable confusion developed over the partial use and attempted further use of a statement previously taken from her by counsel for plaintiff, but her testimony in substance was: that she had passed up that aisle pushing a cart, but had not noticed the plaintiff; she thought that she had seen the mailbox as she passed and that it had seemed to her to be a little unusual in a display on a Christmas counter; she had not seen it in the aisle, but did not know its precise position or location at the time; after she proceeded on to the next counter she looked back (past plaintiff) for her little boy, and then saw plaintiff, about ready to fall, put up her hand, twirl, and fall, with a smashing of crockery; after the fall the mailbox was within two feet of the end of the counter. At one point (and during considerable controversy over her statement) she said that she could not remember whether the mailbox was on the floor or on the counter when she first saw it, but that she pushed her cart along the aisle about one foot from the counter and had no difficulty.
A cigarette salesman, Don Cardwell, was in the store at the time, arranging a display in the open space just south of the island counter in question; he heard the fall, walked around the corner and saw plaintiff on the floor. He had been talking to the manager, Kenneth Morrow, at that location for about five minutes; he testified that there was a clear view up the aisle from that general location if one had looked, depending somewhat on the exact position, but that he had not looked up the aisle. He saw the mailbox on the floor after the fall, and not 'too far out' from the counter. Cardwell assisted in giving first aid to the plaintiff.
Kenneth Morrow, the manager, and Fred Holmes, assistant manager, testified for the defendant. Mr. Morrow's testimony was in substance as follows: that he had passed along that aisle about ten or fifteen minutes before plaintiff's fall, but he did not 'observe' the mailbox at that time; that it was kept on the bottom shelf; that he had talked to the cigarette salesman for a few minutes shortly prior to the accident about the display he was putting in south of the counter, but that he was back in the storeroom when he learned of it; the counter was three to four feet wide at the bottom and approximately two feet wide at the top; that after the accident the mailbox was lying on the floor beside the counter; that they (in the store) were careful to keep the aisles clear, realizing that customers frequently were looking at the merchandise and not at the floor. Mr. Holmes testified: that he had swept the aisles of the whole store with a wide push broom on that afternoon beginning at about 3:00 o'clock; that he saw the mailbox on the bottom shelf of the counter at around 3:30; that it was near the north end of the counter; that there was no mailbox in the aisle. Mr. Holmes was of the opinion that the counter holding the mailbox was the middle one of the three island counters rather than the south one, as the other evidence indicated.
There was no testimony concerning the actual location of the mailbox immediately prior to plaintiff's fall except that, at about 3:30, it was on the bottom shelf of an island counter. It was not shown, by either plaintiff's or defendant's evidence, whether it protruded into the aisle, how it was first moved, or how it got into a position on the floor in front of p...
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...carpet and thus actively covered up the claimed defect, no notice to defendant of the defective condition was required. Ward v. Temple Stephens, Mo., 418 S.W.2d 935. Other cases cited by defendant involve alleged defects which were open to view, and are neither controlling nor persuasive on......
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Mathis v. Jones Store Co.
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