Welty v. S. H. Kress & Co.

• Decision Date: 06 June 1927
• Docket Number: No. 15832.,15832.
• Court: Missouri Court of Appeals
• Parties: WELTY v. S. H. KRESS & CO.

295 S.W. 501

WELTY v. S. H. KRESS & CO.

No. 15832.

Kansas City Court of Appeals. Missouri.

June 6, 1927.

Appeal from Circuit Court, Vernon County; Hon. B. G. Thurman, Judge.

Action by Alta Welty against S. H. Kress & Co. Judgment for plaintiff, and defendant appeals. Reversed and cause remanded.

Ewing, Ewing & Ewing, of Nevada, Mo., for appellant.

W. M. Bowker and A. E. Elliott, both of Nevada, Mo., for respondent.

ARNOLD, J.

This is an action in damages for personal injury, alleged to have been received by plaintiff through negligence of defendant.

The record discloses that defendant is a corporation organized and existing' under the laws of the state of Missouri, engaged in conducting a general merchandise business at Nevada, in Vernon county. On August 29, 1924, and for some time prior thereto, plaintiff was in the employ of defendant as clerk and saleswoman, and in the performance of her duties had charge of the hardware and tinware counters.

On the date above named, while acting as such clerk and saleswoman, plaintiff had occasion to separate some graniteware pans which had come from the stockroom nested together. That is to say, the pans were closely set one within another, to the number of half a dozen or more. The testimony shows that when a customer desired to purchase one of the pans, it became necessary for the sales person to separate one from the nest wherein they were so tightly set and stuck that it required the use of a sharp pointed instrument inserted between the edges, or pressure of some kind, to effect a separation.

Plaintiff testified she was shown by the manager of defendant's store how to separate them by the insertion of a screwdriver used as a pry between the pans. The manager, testifying for defendant, denied that he gave plaintiff such instructions. The testimony shows that, in prying the pans apart with a screwdriver on said date, a piece of enamel flew off and struck plaintiff in the right eye, imbedding itself therein and causing permanent injury.

The petition charges it was the duty of defendant to furnish plaintiff a reasonably safe place in which to work, to provide a reasonably safe method of doing her work, and to warn her of any dangers not patent or apparent to her and which were known, or, in the exercise of ordinary care, should have been known to defendant; that on August 29, 1924, in the performance of her duties, she had occasion to separate some granite pans which were stuck together, and that she was directed by defendant's manager and agent to use a screwdriver for that purpose; that such was the general method and usage provided for separating such pans in such condition in defendant's store; that she did use a screwdriver as so directed and as provided for such use by defendant; and that, as she pried the pans apart, a piece of granite flew loose from said pans and struck her in the right eye, severely injuring her; that such granite pans when pressed and pried apart by a steel instrument, such as a screwdriver, were likely to chip, and that such chips were liable to fly and injure the person so using the same, and that such fact was known to defendant and unknown to plaintiff. The petition charges negligence, as follows:

"* * * That said defendant was guilty of negligence in not warning the plaintiff of the dangers in separating the pans as aforesaid; that said defendant was guilty of negligence in this, that prying said pans loose with a steel screwdriver was not a reasonably safe method in which to separate said pans, and was not a reasonably safe method of performing such work; that a safe method of separating said pans and unattended with the dangers aforesaid could have been provided by the defendant for separating the same; that it was the duty of the defendant to furnish the plaintiff with a reasonably safe place in which to work and with reasonably safe appliances with which to work; and that said defendant was guilty of negligence in sending said pans down and placing them upon the counter for plaintiff to handle as a saleswoman without having first separated the same."

It is charged the injury caused plaintiff's eye to become inflamed and caused her to suffer intense pain and agony, that it has affected the sight of said eye, and that said injuries are permanent. It is alleged plaintiff incurred doctor bills and expenses in the treatment of said injury to the amount of $234. Damages are sought in the sum of $2,999.

The answer admits defendant's corporate status and that plaintiff was employed by said corporation, as alleged in the petition, but specifically denies that defendant failed to furnish plaintiff a reasonably safe place in which to work, or to notify her of any dangers not patent to her in connection with her work. The answer further denies that through its agent or manager plaintiff was instructed or directed to separate the granite pans with a screwdriver; denies that granite pans, such as plaintiff was handling, are liable to chip or break when pried apart with an instrument such as plaintiff was using; denies it was the general method and usage in defendant's store to use a screwdriver in separating such pans; denies that defendant had knowledge of any danger incident to the use of a screwdriver in separating granite pans, such as plaintiff was handling, when such pans are stuck together; and denies that defendant was negligent in any particular.

The answer avers that defendant furnished plaintiff a reasonably safe place in which to work, that the work in which plaintiff was engaged was not of a dangerous character, such as to cause any one to apprehend danger in the discharge thereof; denies defendant was guilty of negligence in not separating the pans before sending them from the stockroom to the counter; and generally denies every allegation in plaintiff's petition except such as are admitted in the answer to be true. The answer further pleads assumption of risk and contributory negligence.

Upon these pleadings the cause was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $750. A motion for a new trial was ineffectual, and defendant has appealed.

The first charge of error is directed against plaintiff's instruction A on the ground that it assumes as a fact an issue which was controverted. Said instruction reads as follows:

"The court instructs the jury that the...