Wilson v. Miss Hulling's Cafeterias, 41352

• Decision Date: 10 April 1950
• Docket Number: No. 41352,No. 1,41352,1
• Parties: WILSON v. MISS HULLING'S CAFETERIAS, Inc
• Court: Missouri Supreme Court

Page 556

229 S.W.2d 556

360 Mo. 559

WILSON v. MISS HULLING'S CAFETERIAS, Inc.

No. 41352.

Supreme Court of Missouri, Division No. 1.

April 10, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 8, 1950.

Ninian M. Edwards, Jr., N. Murry Edwards, St. Louis, for appellant.

Linster & Beall and John S. Marsalek, and Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for respondent.

DALTON, Judge.

Action for damages for personal injuries sustained when plaintiff, who was a patron in defendant's cafeteria in the City of St. Louis, stepped on some substance on the floor of the cafeteria and slipped and fell. Verdict and judgment were for defendant and plaintiff has appealed.

Plaintiff's evidence tended to show that, on the evening of June 28, 1947, plaintiff in company with her brother, sister and sisterin-law purchased meals from defendant at its cafeteria located at 1103 Locust street, and, after an hour or hour and a half at one of defendant's tables, they arose and started to leave. Within seven to ten feet of the table where they had been seated, plaintiff said she stepped on something on the floor causing her to fall and break her left wrist. She fell between the table at which she had been seated and another table a short distance away.

Immediately after plaintiff and her party had first been seated, plaintiff observed a waitress in uniform clearing the dishes off of this other table across the aisle. No one was then sitting there or close to it and, during the hour to an hour and one-half plaintiff and her party were seated at their table, no patrons or waitresses passed between the two tables or over the place where plaintiff subsequently fell.

Plaintiff testified that she arose from the table where she had been seated, passed around it and started in the direction of the cashier's desk and, while she was between the table which she had seen the waitress clearing and the table at which she had been seated, she slipped and fell. She said 'I stepped on something that was either a little grease or gravy, it was a soft substance, * * * my right foot * * * skidded and went, well, a foot or a foot and a half. It threw me on my left, as I went forward I fell on my left wrist and broke it. * * * It was either grease or gravy, some grayish matter. * * * It was something slippery and it was something near the color of the floor--grayish matter, sort of.' Plaintiff was lifted up and placed in a chair near the table where she fell. She could very distinctly see the place where her foot had slipped. Concerning its size, she said it 'probably might have been two or three inches, but my foot in it, it made like a long line, because, as I say, I slipped about a foot or a foot and a half and the mark where my foot slipped showed the mark of the grease, * * * when I stepped in it it was spread as I went along, my foot slipped in it.' In about ten minutes after she fell a 'waitress came with a cloth and wiped the spot,' wiped it all up.

Plaintiff was wearing white leather shoes, 'they weren't real new, they had been polished.' She didn't know 'just when they were polished.' After she fell there was a white mark on the floor made by her shoe. It was 'at the end of where I slipped when my foot was thrown. * * * I was thrown to the side, and then when the heel of my shoe touched the side of my shoe and hit the floor, it showed the mark in white.'

Plaintiff's left foot was smaller than her right and that condition had existed since birth. She was 'lame in that foot.' She said: 'It is strong, but not as strong as the right. * * * The reason I wear a special shoe is because it would . . . low shoes would be too large for my left foot, and in order to have just one pair of shoes, if I had high shoes it would stay. On my left foot it would be too large if I had a low shoe. Q. You wear a high shoe so you can lace it up and keep it on? A. Yes, it would be too large for my left foot, but it would fit my right foot.'

Defendant's evidence tended to show that the floor of the cafeteria was covered with asphalt title and that it was 'practically impossible to slip on it, unless some foreign object such as a piece of meat that is greasy or something like that were left on the floor.' A witness who saw plaintiff fall testified that plaintiff 'stumbled over and fell * * * she went forward * * * apparently this lady fell forward like you stumbled on something. * * * She started from the chair like and stumbled and she fell in the aisle,' within about four feet of where she had been sitting. Witness saw her falling forward, saw her fall between the tables and went to her and assisted her to a chair. There was nothing on the floor, no grease or gravy or anything of that kind. Witness asked plaintiff whether she 'slipped,' and plaintiff said she 'fell.' This witness saw no mark on the floor and saw no one come up after the occurrence and wipe the floor.

Another witness testified: 'I was just passing by, just walking toward the cashier, and I noticed she was down on the floor. * * * I helped pick her up. * * * It seems she fell on her arm. * * * I inspected the floor after we picked her up * * *.' Witness saw a white skid mark, eight or ten inches long, extending east and west. There wasn't any grease or gracy or anything of that kind on the floor. Witness stayed about ten minutes and no one wiped the floor with a rag or did anything to the floor.

Another witness testified that she was walking over to the table to pick up the dishes from the table where plaintiff had been seated. She saw plaintiff standing--holding onto a chair. Plaintiff 'was pretty pale, and just a few minutes after, she fell. * * * A couple of seconds, I imagine, and then she fell.' Witness was about two or three feet from her. 'She fell in a heap.' Witness had turned around and 'didn't actually see her in the act of going down.' The witness further testified: 'They sat her on a chair and she told me that everything went black on her.' Witness asked 'what happened' and plaintiff said, 'everything was black.' Witness inspected the floor and there was nothing on the floor. 'There was no mark of wax on there or there wasn't no food on the floor, there was nothing on there. * * * We looked it over to see if there was any smears of wax on there, or any food or anything that could have made her slip, or if anyone dropped anything on the floor, and I didn't find nothing.'

In rebuttal, plaintiff denied that she stumbled and fell, or that she told any one 'that she blackened out and fell.' Other facts will be stated in the course of the opinion.

Appellant assigns error on the giving of Instruction 4 requested by defendant on the exclusion of evidence offered by plaintiff and on the court's action in sustaining an objection to the argument of plaintiff's counsel to the jury. Respondent contends that the instruction is correct; that the excluded evidence was inadmissible; that the objection to the argument was properly sustained; and that, in any event, appellant was not prejudiced since a submissible case of negligence was not made out. Respondent's theory is that plaintiff offered no substantial evidence tending to show that the substance, which is alleged to have been on the floor and to have caused plaintiff's fall, 'was there for a sufficient length of time to charge defendant with notice of its presence' and to make an issue of negligence for the jury. State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99; McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W.2d 555. We need review only the errors assigned.

Instruction 4 is as follows: 'The Court instructs the jury that the mere fact that plaintiff fell and sustained an injury while upon defendant's premises, upon the occasion mentioned in evidence, does not of itself warrant you in finding against the defendant. In this connection, the Court further instructs you that if you believe and find from the evidence that, after arising from her chair, the plaintiff commenced to walk toward the cashier's stand in defendant's cafeteria, and that while so doing, she lost her equilibrium and fell as a result of her physical condition, and that her fall was not caused by any foreign matter on the floor of defendant's premises, then the Court instructs you that the plaintiff is not entitled to recover against the defendant in this suit, and you should find your verdict in favor of the defendant.'

Appellant contends that the first part of the instruction was misleading; and that it argumentatively, unnecessarily and erroneously stated that the 'mere fact' that plaintiff fell and was injured did not in itself warrant a verdict for plaintiff. Appellant cites Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223, 229, where this court referred to an instruction as argumentative and 'the cautionary 'mere fact' unnecessary.' The part of the instruction complained of is cautionary. The giving of it was within the discretion of the trial court and was not error. Dove v. Atchison, T. & S. F. R. Co., 349 Mo. 798, 163 S.W.2d 548, 552; Steinmetz v. Nichols, 352 Mo. 1047, 180 S.W.2d 712, 714; Payne v. Carson, Mo.Sup., 224 S.W.2d 60, 62.

Appellant further contends that the instruction erroneously submitted contributory negligence as a defense when such affirmative defense was not pleaded. Appellant cites Lyons v. Wells, Mo.App., 270 S.W. 129, 130; Shaw v. Wilcox, Mo.App., 224 S.W. 58, 59; Schuler v. St. Louis Can Co., 322 Mo. 765, 18 S.W.2d 42, and other cases. There is no merit in this contention. The instruction submits no voluntary, conscious or negligent act of the plaintiff as a defense. That 'she lost her equilibrium and fell as a result of her physical condition' does not in our opinion submit any act of plaintiff to which negligence or contributory negligence could be applied. Nor does the instruction direct a verdict for defendant 'if plaintiff's physical condition...