Weisbrod v. Katz Drug Co.
| Decision Date | 20 September 1949 |
| Docket Number | 27618 |
| Parties | WEISBROD v. KATZ DRUG CO |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
William P. Nolan, St. Louis, James E. Garstang, Jr., St. Louis, C Lawrence Mueller, St. Louis, for appellant.
L. A Robertson, St. Louis, C. Arthur Anderson, St. Louis Alexander & Robertson, St. Louis, for respondent.
This is a suit for damages arising out of personal injuries in which there was a verdict and judgment for $ 1,500 for the plaintiff and the defendant appeals.
The defendant operates a drug store on the corner of a busy street intersection in the City of St. Louis. To the west of its store is a public alley which runs from the street upon which the store fronts to a street to the south. The alley is used for deliveries to the occupants of a number of large buildings within the city block which it crosses and it carries considerable traffic.
About one hundred feet from the north entrance to the alley and upon the west wall of the building occupied by the drug store is a steel door. It is thirty-three inches wide by thirty-eight inches in height and swings upwardly upon two hinges at the top to open. It is set within a metal frame but within an opening in the wall which the door covers. The opening is for a delivery chute which is constructed to allow packages, boxes and the like to slide freely down from the opening into the basement of the defendant's store.
When the door is closed it fits tightly and becomes latched with the catch over the interior of the metal frame. In order to unlatch the door it is necessary to pull upon a rope line in the basement. This line is attached to the latch and disengages the catch and allows the door to be opened from the alley.
After the door is unlocked from the inside it may be raised upwardly by two handles and held upright against the wall by means of a hook. The hook is fastened in the wall in such a fashion that it can be placed through a metal eyelet in the steel door when it is raised. The weight of the door is between forty and seventy-five pounds.
The plaintiff worked for a trucking company and on the day he was injured he drove a truck into the alley from the north for the purpose of delivering some cartons of merchandise to an occupant of one of the buildings. Another truck ahead of him prevented him from stopping directly in front of the door to which the delivery was to be made and he was obliged to roll the cartons from his truck past the steel door. The door was raised and he saw no one delivering goods to the defendant, nor did he see any one open or close the door or do anything pertaining to it, and he did not touch it himself. The alley is between twelve and fifteen feet in width and it was necessary to pass close by the door as he rolled the cartons southwardly down the alley. While he was so rolling one of the cartons the door fell and struck him on the head.
After he was struck on the head plaintiff was taken to the manager of the defendant's store by a clerk named Ballinger, who worked for the company to which the delivery was being made, and the plaintiff was sent by defendant's manager to a doctor. Medical testimony regarding the extent of the injuries has been omitted from the transcript of the record by consent of counsel as no point is raised touching upon the amount of the damages nor the extent of the injuries.
Plaintiff described the door and its operation. He stated that when the door is down and a delivery is to be made to the defendant's store the driver making the delivery kicks upon the door to signal the receiving clerk to open it and the clerk in the defendant's basement then pulls the line that unlocks the door. This permits the driver to raise and hook it. Plaintiff did not know who had raised the door, or whether the hook was fully engaged within the eye on the door before it fell.
Ballinger, who was assisting the plaintiff in the delivery and was not an employee of the defendant, testified that his work required him to come into the alley often and that he had frequently seen delivery men pound on the door as a signal for some one in Katz' basement to pull the latch rope and that the delivery men would then lift the door upright and hook it against the wall. He stated that he had seen such an occurrence about ten or twelve times but that he had never seen an employee of the defendant raise the door.
Bell, defendant's store manager, was called by plaintiff and stated that the door was for the sole use of the defendant and that the defendant had exclusive control of the door. He also related the manner in which the door was used and stated that the rope was employed to unlatch it because it would be difficult and impractical to have a man go up the delivery chute to do so.
The defendant's receiving clerk was called by the plaintiff and stated that he pulled the cord to unlatch the door as the process was described by the other witnesses and that the door was always opened by the delivery men except upon rare occasions when sealed deliveries requiring inspection came to the store. He said that on the day in question some deliveries had been made and there may have been as many as fifteen prior to the accident. He did not know who had made any deliveries that day.
At the conclusion of plaintiff's evidence the defendant moved for a directed verdict and upon the motion being overruled put in evidence the deposition of the plaintiff touching upon his injuries. Defendant offered nothing more and renewed its motion for a directed verdict which was again overruled.
The case was submitted upon the doctrine of res ipsa loquitur and it is the contention of the defendant that the evidence does not...
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