Wilkins v. Allied Stores of Mo.
| Decision Date | 13 January 1958 |
| Docket Number | No. 1,No. 46044,46044,1 |
| Citation | 308 S.W.2d 623 |
| Parties | Emma WILKINS, Plaintiff-Appellant, v. ALLIED STORES OF MISSOURI, d/b/a Peck's of Kansas City, Defendant-Respondent |
| Court | Missouri Supreme Court |
E. A. (Bert) Taylor, Donald E. Raymond, John C. Russell, Kansas City, for appellant, Pew, Taylor, Welch & Sheridan, St. Louis, of counsel.
Howell, Rayburn & Sanders, Norman S. Howell and John A. Weiss, Kansas City, for respondent.
Action for $25,000 damages for personal injuries alleged to have been sustained by reason of defendant's negligence. Plaintiff was injured when she slipped and fell on the terrazzo floor of the entranceway to defendant's store. At the close of plaintiff's evidence the court directed a verdict for defendant and entered judgment. Plaintiff has appealed.
In her amended petition plaintiff alleged that on November 30, 1953, while in the act of stepping from the public sidewalk into the entranceway of defendant's store 'she was caused to slip and fall and did slip and fall due to the unsafe, negligent and dangerous construction, operation and maintenance of the surface * * * of said entranceway * * * that the public sidewalk adjacent thereto is constructed of a firm non-slippery material which furnishes sure footing,' while 'the smooth, slick and glassy surfaced entranceway into the store is so constructed * * * as to constitute an uneven * * * dimly lighted, slippery, deceptive and dangerous surface * * * especially when wet * * * and exceedingly slippery and dangerous to persons entering said store from said sidewalk * * * and because of the contrast in slipperiness between said sidewalk and the floor of said entranceway, and the deceptive similarity in appearance between the sidewalk and said floor.' (Italics ours.)
In view of the issues presented, we must review the evidence in some detail. Defendant's store is located on the west side of Main Street between 10th and 11th streets in Kansas City, Missouri. The entranceway faces east and is recessed into the building. There are two square columns at intervals at the outside wall of the building. The columns divide the entranceway into three parts. The show windows within the entranceway are set at an angle to the street so that the entrance is a shallow V-shaped opening into the building. The main entrance into the store is through three small doors and two revolving doors at the back of the entranceway. One of the exhibits indicates that the ceiling of the entranceway is several feet higher than the top of the door entrances.
The floor of the entranceway is of terrazzo and there is a line at the edge of the sidewalk. The line extends along the outside edge of the square posts or columns. The terrazzo surface slopes up into the entranceway. The amount or percentage of the slope does not appear from the evidence and there is no reference to or reliance on slope in appellant's briefs. An examination of the terrazzo entranceway by plaintiff's witness James Marra showed it to be 'a typical job of installation.' He noticed nothing unusual about its construction and said: 'It was installed and maintained in accordance with good architectural practices.' There were no mats or anything on the sidewalk or entranceway at the time plaintiff fell.
It had been raining hard for some thirty minutes before plaintiff reached the store about 1:30 p. m. The entranceway was wet. Plaintiff, 57 years of age, was on her way to purchase some thread and towels. She had her umbrella, her purse and a shopping bag. Her umbrella was up and in her right hand, her purse and handbag were in her left hand. She said she turned in between that pillar and the corner, into Peck's (defendant's) store and fell. 'Well, I just stepped in there and my feet slipped out from under me and I fell.' She fell backward with her head up toward the show windows and her feet down toward the sidewalk and the pillar. There was 'not anything' that called her attention to the fact that she was about to walk on a different kind of surface. She said the sidewalk 'was kind of dark gray looking color' and so was the terrazzo entranceway. 'It all looked the same to me, I didn't know any different.' (sic). She didn't 'recall any light' in the entranceway. She did not recall whether it was freezing or not. 'It was not too cold, but it was cold.' She was wearing ordinary black rubber galoshes and didn't think she had closed her umbrella before she fell, because she had just come around the corner and started in. 'I know I came in out of the rain.' The sidewalk didn't seem to slick to her. She said:
She admitted that she had testified by deposition that the sidewalk and entranceway 'were both slick.' At the trial she said the sidewalk 'was bound to be a little slick because it was raining' and 'so was the entranceway because there was water there from the rain.' She further testified: She didn't 'recall how many people were there.' No one close ahead of her that she could recall. She had never been in the entranceway before. She said that defendant's Exhibit 'A' looked like a representative photograph of the entranceway as it existed at the time, 'as well as I can tell.' She marked an X on the photograph indicating where her feet were when she fell. It was daylight at the time, about 1:30 p. m., but 'it was real cloudy.' She admitted having testified that 'I fell just as I went off of the walk and up that slope.' She further said that she fell as she was stepping from the sidewalk into the entranceway and that 'the entranceway sloped up.' It was 'slick and I just slipped.' She had also testified that she didn't have time to notice anything unusual there 'on the lobbyway.' At the trial she said: 'I just stepped in there and fell; it all happened so quick.'
Plaintiff offered photographs taken about 4 p. m., December 9, 1956, when the sidewalk was dry, with the exception of wet foot prints tracked off the wet street. There was some sunshine that day and the sun was in the west at 4 p. m. The pictures were made with natural light.
Aileen Underwood, a witness for plaintiff, testified: 'There is one thing, it seems to me it (the entrance) is very poorly lighted at the entranceway there, as you go in from the sidewalk to the entrance; it isn't very well lighted and you can't see and distinguish the sidewalk from the entranceway * * * so far as color is concerned.' As to the texture of the sidewalk in front of the store, the witness testified: 'It seems to me it is the same as any other sidewalk, it has good footage; but when you get in on the entranceway it is slippery,' that is, when the entranceway is wet, it is slippery. The witness had experienced difficulty in walking across the entranceway but had never fallen. She further said: 'It seems to me I couldn't distinguish * * * between the entranceway and the sidewalk, so far as color is concerned * * * as far as I can remember * * * Yes, it is about the same color.' The witness further testified:
* * *
The witness further said:
On cross-examination she testified:
Frances L. Stone described the conditions at the entrance of the store as follows: 'Well the sidewalk is roughter and the entrance is slick, and it is like walking on ice when you step on it.' With respect to color she said: 'I have seen no difference' between the color of the sidewalk and the entranceway. She had visited the store in the daytime when it was rainy and wet and, with respect to lighting, said: As to the lighting conditions about the sidewalk she said: 'I don't know, I haven't noticed it. * * *
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