Wiedanz v. May Department Stores Co.

• Decision Date: 02 December 1941
• Docket Number: No. 25854.,25854.
• Citation: 156 S.W.2d 44
• Parties: WIEDANZ v. MAY DEPARTMENT STORES CO.
• Court: Missouri Court of Appeals

156 S.W.2d 44

WIEDANZ v. MAY DEPARTMENT STORES CO.

No. 25854.

St. Louis Court of Appeals. Missouri.

December 2, 1941.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

"Not to be reported in State Reports."

Action for injuries by Minnie Wiedanz against the May Department Stores Company, a corporation. From a judgment for the defendant, plaintiff appeals.

Affirmed.

Hay & Flanagan, of St. Louis, for appellant.

Carter & Small and James E. Garstang, all of St. Louis, for respondent.

McCULLEN, Judge.

This suit was brought by appellant, as plaintiff, to recover from respondent, as defendant, damages for personal injuries alleged to have been sustained by plaintiff while she was about to enter defendant's store through a revolving door.

At the conclusion of plaintiff's case, the trial court gave a peremptory instruction in the nature of a demurrer to the evidence requested by defendant directing a verdict for defendant, whereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. In due time a motion to set aside the involuntary nonsuit was filed and overruled, and thereafter plaintiff duly appealed to this court from the judgment of dismissal which was entered.

Plaintiff's petition alleged that, on December 22, 1934, defendant maintained at its store in the City of St. Louis a number of revolving doors which its customers used in entering and leaving the store; that on said date, while plaintiff was entering the store as a customer through the entrance on the Locust Street side of said store near Sixth Street, and while she was waiting to pass through the revolving door at said entrance, a man passing through said door pushed one of the wings thereof thereby causing said door to revolve rapidly and to knock and shove a woman, coming through said door, against plaintiff who was thereby knocked down and injured. Plaintiff's petition further alleged that her injuries were directly and proximately caused by the negligence of defendant in two respects:

1. That defendant negligently failed to exercise ordinary care to keep and maintain said revolving door in reasonably safe condition for the use of its customers, in that it negligently suffered and permitted said door to revolve with dangerous ease and rapidity when defendant knew, or by the exercise of ordinary care would have known, that its customers using said door would be apt to be injured by reason thereof.

2. That defendant negligently failed to exercise ordinary care to warn plaintiff and its other customers using said door that it revolved with dangerous ease and rapidity when defendant knew or, by the exercise of ordinary care, would have known that unless said warning were given its customers might be caused to be injured by said door.

The answer of defendant was a general denial.

Plaintiff contends that the court erred in holding that the evidence did not show negligence on the part of the defendant and did not make a case for the jury.

The evidence of plaintiff showed that about five o'clock in the evening of December 22, 1934, she was standing on the top of a step in the vestibule of the entrance to defendant's store on Locust Street near Sixth Street, within a few inches from the revolving door in question. The revolving door was composed of wings which revolved in a housing, each wing being equipped with a handle to be held by persons going in or out, and on each wing of the door a sign reading "Slowly please." The evidence further showed that the speed at which the door in question revolved was regulated by the amount of pressure put upon the wings thereof by persons using the door; that its speed could be increased or retarded by the use of the handles; that it revolved when persons would push on the wings thereof while passing through; that, while plaintiff was standing in the position mentioned, the door was pushed by a man entering the store and it struck a woman who was coming out through the same door, throwing her against plaintiff and knocking plaintiff down causing her injuries. The evidence also showed that plaintiff and her daughter had been in the store on the same day about noon and had gone through the same door, as they had been in the habit of doing. The regular ordinary doors leading into the store near the revolving door had a sign reading "Use Revolving Door."

Vera Benz, plaintiff's daughter, testified, as a witness for plaintiff, that she noticed that morning that the door in question revolved very fast; that it just speeded around like it was very loose. The defendant's objection to the description by the witness "it was very loose" was sustained, plaintiff excepting to said ruling. The witness further stated that on the morning in question she noticed the door revolved very fast while on previous occasions if she pushed it a little bit there was something that would hold it back; that she had gone through the same door two weeks prior to the day in question as well as twice on said date, and noticed on the later date that the door spun very rapidly as compared to its movement two weeks before.

Plaintiff testified that she was going into the store to do some shopping when a man, going in very rapidly, swung the door and it hit a lady on the muscle of her left leg, and that the lady "flew out with her hands this way (indicating) and I was standing there ready to go in, and, of course, she knocked me down"; that the lady said "she was very sorry that she had knocked me down, but it wasn't her fault, it was the fault of the door." On motion of defendant, plaintiff's testimony that the lady said "it wasn't her fault, it was the fault of the door" was stricken out on the ground that it was not part of the res gestae, and on the additional ground that it had no probative force, plaintiff excepting to the ruling of the court.

Plaintiff adduced evidence as to the nature and extent of her injuries, but they are not involved in this appeal and it is unnecessary to discuss them here.

Plaintiff further testified that she had noticed the difference in the manner in which the door revolved the first time she was in the store on December 22, 1934, as compared with previous occasions when she had been through the door; that on the day in question it seemed like it was looser; that it swung very easily as compared to the other occasions when she had gone through the door.

F. W. L. Peebles, a witness for plaintiff, testified that he was an engineer and had been associated with some of the largest consulting engineers some years ago, and had been in business for himself since 1910; that he was a graduate of St. Louis University with a degree of engineer and a commission of the General Staff School of the United States Army; that he had made a special study of the law of physics and had used and applied physics continuously in his work. The court refused to permit the witness to testify as to studies made by him with respect to revolving doors and brakes applicable to them, and the reasons he had made a special study of revolving doors. Counsel for plaintiff offered to prove that the witness would testify that he had made a special study of revolving doors because of patents he had been working on and various devices, and of the speed with which such doors revolved under various conditions; that he also had made a study of such doors with respect to the speed they revolved when certain devices were on them; that the purpose of such questions was to lay the foundation to show the witness' experience so that he could testify that he made an inspection of this particular door; that he had checked it and knew the revolutions it would travel under given conditions. The offer of proof was rejected by the court, plaintiff excepting to the ruling.

The witness testified further that he had gone through the revolving door in question within the last two or three months prior to the trial, but that he had no specific recollection of going through it prior to December 22, 1934, but felt certain that he must have done so; that the door in question is the same type of door he saw there the first time he went through it; that he observed the method of the operation of the door from time to time as well as other revolving doors; that when one of the wings of such a door is stationary and is center front, it extends out six or seven inches because the housing is circular and part of it is cut off; that the door in question was a wooden door, and that the weight thereof had a good deal to do with the speed; that the heavier the object is under the same pressure, the more slowly it will start. The court refused to permit the witness to testify as to the speed with which such a door as the one involved in the case at bar revolves, upon defendant's objection that the witness had made no examination of the same at the time of the accident. The court also refused to permit the witness to testify that he had made a test to determine the amount of pressure necessary to set in motion a door such as the one involved herein to a given rate of speed. Plaintiff offered to prove that the witness would testify that he had made such a test and had had that experience with other such revolving doors, but the court ruled out the offer.

The witness further testified that on the door in question there is a strip known as a seal strip intended to keep the outside air—cold air, from coming in; that said strip is commonly referred to as a weather strip, its purpose being to seal as the door revolves; that the weather strip provided a friction load which tends to keep the door from revolving too rapidly; that it tended to slow the door and required pressure to move it over the housing; that if, on December 22, 1934, the weather strips referred to as friction strips were in good condition, he would be able to tell the amount of pressure that would be necessary to make the door revolve; that he had an instrument for...