Watson v. Aronberg

• Decision Date: 02 April 1929
• Docket Number: No. 20549.,20549.
• Parties: WATSON v. ARONBERG.
• Court: Missouri Court of Appeals

15 S.W.2d 356

WATSON v. ARONBERG.

No. 20549.

St. Louis Court of Appeals. Missouri.

April 2, 1929.

Rehearing Denied April 16, 1929.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Ethel Watson against Charles Aronberg. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Kelley, Starke & Hassett, Edward C. Woodard, and Hensley, Allen & Marsalek, all of St. Louis, for appellant.

Rollins & Barry and Charles B. Williams, all of St. Louis, for respondent.

BECKER, J.

Plaintiff, in her action for damages for personal injuries, obtained a judgment for $4,000 against the defendant. Defendant in due course appeals.

Plaintiff's petition alleges that on the 30th day of September, 1926, she entered the store of the defendant for the purpose of paying a bill; that as she was leaving she stepped into a puddle of dirty water left in the aisle over which she was walking, causing her to slip and fall violently to the floor, sustaining injuries. The petition alleges that the defendant had actual or constructive notice of the pool of water on the floor a sufficient length of time before plaintiff fell to have removed it or warned plaintiff of the danger, but that defendant negligently failed to do so.

The answer was a general denial.

On the record before us plaintiff must be held to have made out a case for the jury. Plaintiff herself testified that on the day in question she went downtown to do some shopping, accompanied by her friend, Mrs. Weishaar; that, when she arrived downtown, at about 1 o'clock in the afternoon, it was raining, but that the sun was shining when, at about 3 o'clock, she entered defendant's store; that, after she had paid her bill at the cashier's desk in the rear of the store, one of the clerks of the defendant who was behind a showcase requested her to look at some rings; that Mrs. Weishaar, whom she had left in front of the defendant's store, joined her during the time she was looking at the rings; that, when she and Mrs. Weishaar started to leave the store, walking up the north aisle thereof, and after plaintiff had taken one or two steps, she slipped and fell into a pool of water, falling on her right hip, and that she had a hard fall; that thereupon two of defendant's employés helped her up and had her sit down on the south side of the store; that, upon her informing these men who had assisted her that she had slipped in a pool of water, they called a porter to come and mop up the water, which he did. According to plaintiff, the pool of water which caused her to fall was some 2 or 2½ feet square. After resting an hour, Mrs. Weishaar called a taxicab and took plaintiff home.

Mrs. Weishaar testified that she was immediately behind plaintiff as plaintiff started walking out of defendant's store; that plaintiff's right foot slipped out from under her; that she had her hands up and fell on her right side, arm, and back, and that the fall was a hard one; that, after plaintiff had been helped to the other side of the store, she noticed that plaintiff's clothing—skirt and coat—were wet and dirty, and that at the place where plaintiff fell there was dirty water covering a spot some 15 by 32 inches; that, immediately after plaintiff had fallen, one of the men who helped plaintiff to her feet called the porter and had him mop up the water from the place where plaintiff had fallen.

Nathan Aronberg, adduced as a witness for plaintiff, testified that he was a brother of, and a salesman for, the defendant, and was present in the store when plaintiff fell. He testified that the porter employed by defendant had been mopping up the floor before plaintiff came into the store; that the porter used a mop and a bucket for this purpose, and that there was one pool of water left on the floor. "This pool of water I referred to, I mentioned the word `pool' at that time, I did, but it was no depth of water, it was a layer of water, there was no hole there where a pool could form, the imprint of the bottom of the bucket, * * * the pool was made by the bucket. Water the porter had in the bucket, was water that was mopped up from the floor. I said that the water that made this pool came from the bucket that the porter was mopping with there. It was the imprint from the bottom of the bucket. The porter had been mopping up ten or fifteen minutes before plaintiff came into the store." He further testified that he saw plaintiff after she left the showcase where she was looking at diamond rings and saw her start to go out; that she had walked a step or two before she fell; that plaintiff slipped, and her foot went out from under her; that he saw Mr. Schneider, the manager of the store for the defendant, and Mr. Levi, take her by her arm and help plaintiff up; that he remembered seeing the porter, at the direction of Mr. Schneider, the manager, go and mop up after plaintiff fell.

The record discloses that, after plaintiff had returned home on the afternoon on which she met with her injuries, she called in Dr. De Pew, who examined her, and continued as her physician, calling on her perhaps ten times in a period of three or four weeks; that she then called in Dr. Harmann, who attended her every other day for a period of some 3 weeks, and then twice a week for 6 weeks thereafter; that plaintiff was then able to leave the house and consult Dr. Harmann at his office from time to time up to the day of the trial, which was some 16 months after she met with her injuries.

Dr. Harmann testified that, when he first examined plaintiff, which was about a month after she had fallen in defendant's store, he found a black and blue spot about 3 inches in diameter on the fleshy portion of plaintiff's right hip; that plaintiff, at that time, complained of backache, nervousness, and that her stomach was upset; that she had headaches, and was unable to sleep at night, and that she had pains in the pelvic region; that upon his making a pelvic examination of plaintiff on this visit, he found tenderness in the region of the uterus; that the uterus was enlarged, displaced, and tipped backwards; that the enlargement included the entire uterine body; that there was a retroflection of the uterus, the posterior part tipped back, and was pressing on the spinal column, or up against the rectum; that he found plaintiff had a retroflexed uterus with a prolapse; that he found a congestion of the uterus; that he also found some slight rectum and bladder symptoms.

It further appears that plaintiff was 37 years of age, married, and the mother of three children, and some 18 years before had suffered a laceration of the cervix or mouth of the womb as the result of childbirth; that this laceration of the cervix had been repaired by an operation. And it further appears that some 10 years before plaintiff had suffered a miscarriage.

Though we rule that plaintiff made out a case for the jury, yet we find that error prejudicial to the rights of the defendant crept into the record. To such error we next address ourselves.

During the progress of the case the trial judge cross-examined a witness adduced by the defendant. It is here urged on appeal that the cross-examination was such as to be tantamount to an abuse of judicial discretion and error highly prejudicial to the rights of the defendant. The point is well taken.

For the purpose of considering this assignment of error we note that it appears from the record that plaintiff failed to adduce Dr. De Pew as a witness on her behalf, though he was the physician whom plaintiff called in first after her fall at defendant's store. Thereupon the defendant called Dr. De Pew as a witness, and he testified that he was called to examine plaintiff the day after she had fallen in defendant's store; that he found her in bed, and that plaintiff complained of pains in the lower part of her abdomen, and that he examined her objectively; that he found nothing whatever on the surface, no bruises or marks of discoloration on her body; that on a vaginal examination he found there was a lateral cervixal laceration and retroversion of the uterus; that he found no hemorrhage, nor any edema or congestion, but that the uterus was slightly enlarged; that he found no prolapse of the uterus; that he gave her sedatives to relieve the pain and nervous condition; that he prescribed douches, as he found plaintiff had a slight leucorrhoea, a discharge of a chronic type, one of long standing. Dr. De Pew testified that his examination of plaintiff at that time disclosed no injuries; that the lacerated cervix was not of recent origin, because he found scar tissue; that the enlargement of the womb had been of long standing; that he did not find plaintiff, on his first visit, suffering from any shock, for plaintiff had no...