Summary
In Schmoll v. National Shirt Shops, 354 Mo. 1164, 193 S.W.2d 605, the plaintiff fell on the terrazzo entrance to the defendant's store and was injured.
Summary of this case from Fletcher v. North Mehornay Furniture Co.Opinion
No. 39594.
March 11, 1946. Rehearing Denied, April 8, 1946.
1. NEGLIGENCE: Slippery Brass Letters at Store Entrance: Duty of Proprietor: Condition Obvious to Invitee. Defendant, the proprietor of a store, owed plaintiff, a business invitee, the duty to exercise ordinary care to have its premises in a reasonably safe condition, but it was not the insurer of the safety of plaintiff. Brass lettering in a terrazzo floor is common, and its slippery condition was obvious to plaintiff. Defendant is not liable for injuries resulting from dangers that were obvious.
2. NEGLIGENCE: Uneven Store Entrance: Proprietor Not Liable. A very slight unevenness of a store entrance would not be the basis of liability.
3. NEGLIGENCE: Slippery Store Entrance: Use of Rubber Mat When Raining: Liability Not Shown. The fact that the proprietor on other occasions had taken the extra precaution of placing a rubber mat in the store entrance when it was raining does not establish liability for failure to take such action before plaintiff slipped.
Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.
REVERSED.
Lashly, Lashly, Miller Clifford and Oliver J. Miller for appellant.
(1) The court erred in denying defendant's motion for a directed verdict for defendant. Because there was not that quantum of substantial evidence of negligence to establish a cause of action against defendant. The fall is not evidence of negligence. Mullen v. Sensenbrenner, 260 S.W. 982; Berberet v. Elec. Pk. Am. Co., 310 Mo. 655, 3 S.W.2d 1029; Cash v. Sonken-Galamba Co., 322 Mo. 339, 17 S.W.2d 927. (2) It is not enough to show possibility of an accident on an otherwise common entrance way. Starkey v. City, 175 S.W. 314; Heideland v. Sears Rocbuck, 110 S.W.2d 795, 233 Mo. App. 874. (3) When one falls from a natural cause, this is not evidence of lack of care. Bruce v. Baer, 76 S.W.2d 423. (4) The test of ordinary care is not extraordinary prevision. Green v. Sibley, 177 U.S. 416; Dabrowski v. Ill. Central, 303 Ill. 31; Bleiman v. City, 314 Ill. App. 471; City v. Bixby, 84 Ill. 82. (5) An ordinary entrance way similar to hundreds in daily use does not present evidence of danger to the ordinary prudent person, even if worn from use. Stein v. Buckingham Realty Co., 60 S.W.2d 713; Linquist v. S.S. Kresge Co., 136 S.W.2d 303; Walker v. F. W. Grand, etc., Store, 137 A. 563; Meyer v. Strauss, 264 S.W. 801; Mullen v. Sensenbrenner, 260 S.W. 982; Brunet v. Kresge, 115 F.2d 713. (6) Even though wet from the rain. Heideland v. Sears Roebuck, 110 S.W.2d 795; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Marshall Field v. LeBosky, 133 Ill. App. 316. (7) Absence of mats is not evidence of negligence on an otherwise common entrance way. Mullen v. Sensenbrenner, supra; Heideland v. Sears Roebuck, supra. (8) If the construction and condition is not inherently dangerous and is open and obvious and natural, normal and expected, then what a pedestrian sees gives her all the information possible, and no further warning need be given. Heideland v. Sears Roebuck, supra; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 270; Paubel v. Hitz, 339 Mo. 274; Cluett v. Union Elec. Co., 220 S.W. 865; Howell v. Kroger Gro. B. Co., 178 S.W.2d 101; Phelps v. Stewart, 187 S.W.2d 59.
Mark D. Eagleton and Wm. H. Allen for respondent.
(1) On the question whether there is evidence to warrant the submission to the jury of an issue of negligence the evidence must be viewed in the light most favorable to the plaintiff, according him the benefit of every inference favorable to him that may with any reasonable propriety be drawn from the evidence; the credibility of the witnesses and the weight to be given to their testimony are for the jury; and the defendant's evidence is to be disregarded except insofar as it aids the plaintiff's case. Gilliland v. Bondurant, 332 Mo. 881. 59 S.W.2d 679; Clark v. Atchison Eastern Bridge Co., 324 Mo. 544, 24 S.W.2d 143; Bootee v. Kansas City Pub. Serv. Co., 183 S.W.2d 892. (2) The proprietor of a store or similar place of business owes to his patrons the duty to exercise ordinary care to see that the premises to which he has invited them, including entrances and exists, are reasonably safe for use for the purposes for which the same were designed and for which such patrons are invited there. State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Cameron v. Small, 182 S.W.2d 565; State ex rel. Elliott's Dept. Store Co. v. Haid, 330 Mo. 935, 51 S.W.2d 1015; Summa v. Morgan R.E. Co., 350 Mo. 205, 176 S.W.2d 390; Bankhead v. First Natl. Bank in St. Louis, 137 S.W.2d 594; Olds v. St. Louis Natl. Baseball Club, 119 S.W.2d 1000; Hubenschmidt v. S.S. Kresge Co., 115 S.W.2d 211. (3) The owner or possessor of premises is liable to an invitee, using due care, for an injury occasioned the invitee by an unsafe condition of the premises actually or constructively known to the owner or possessor and which he has suffered to exist, but of which the invitee has no knowledge or notice. State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Sameron v. Small, 182 S.W.2d 565; Hubenschmidt v. S.S. Kresge Co., 115 S.W.2d 211. (4) Since in this case the name "National Shirt Shops" maintained by defendant in large letters on the terrazzo floor at the entrance to its store was made of brass containing no abrasive substance and having no corrugations or appertures, and the same had been so maintained for years and the terrazzo floor thereabout had become worn down so that the brass lettering was higher than the floor and had, by long usage, become highly polished, smooth, slick and dangerous, particularly when wet, and defendant recognized this and customarily covered the lettering with a rubber mat during rainy weather but on the occasion in question it was not so covered until after plaintiff had fallen and suffered injury by reason of the slick and dangerous condition thereof, which dangerous condition was not apparent to one looking at it, and plaintiff, though she looked, had no knowledge or appreciation of the danger, the question of defendant's liability to plaintiff is plainly one for the jury. State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Cameron v. Small, 182 S.W.2d 565; State ex rel. Elliott's Dept. Store Co. v. Haid, 330 Mo. 935, 51 S.W.2d 1015; Summa v. Morgan R.E. Co., 350 Mo. 205, 176 S.W.2d 390; Bankhead v. First Natl. Bank in St. Louis, 137 S.W.2d 594; Hubenschmidt v. S.S. Kresge Co., 115 S.W.2d 211. (5) Since the evidence shows that defendant provided a rubber mat which was customarily placed over this brass lettering when it was raining, which, however, was not put out upon this occasion until after plaintiff had sustained her fall and injury, the jury was at liberty to find that defendant actually knew that the entrance to its store as maintained by it at the time of plaintiff's injury was unsafe and dangerous. State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Bankhead v. First Natl. Bank of St. Louis, 137 S.W.2d 594; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390. But it is not essential to an invitee's right to recover that it appear that the owner or proprietor had actual knowledge of the danger; it is sufficient if, as here, the dangerous condition had existed long enough for the owner or proprietor, by the exercise of ordinary care, to have discovered and remedied the same. State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Bankhead v. First Natl. Bank of St. Louis, 137 S.W.2d 594; Cameron v. Small, 182 S.W.2d 565; Hubenschmidt v. S.S. Kresge Co., 115 S.W.2d 211. (6) And since plaintiff did not know that this name plate was so slick as to be dangerous and unsafe, did not know or appreciate the danger of stepping thereon while it was wet, looked where she was stepping but had no means of knowing the danger lurking in the place, she cannot be charged with having been guilty of contributory negligence. State ex rel. First Natl. Bank of St. Louis v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Bankhead v. First Natl. Bank of St. Louis, 137 S.W.2d 594; Cameron v. Small, 182 S.W.2d 565; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390; Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533; Hubenschmidt v. S.S. Kresge Co., 115 S.W.2d 211. (7) Where a storekeeper negligently maintains a particular condition on his premises that is in fact unsafe and dangerous and a business invitee is injured thereby he cannot avoid liability by showing that other storekeepers permit like dangerous conditions to exist on their premises. State ex rel. Elliott's Dept. Store Co. v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Cameron v. Small, 182 S.W.2d 565; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Carlyle v. Tilghman, 174 S.W.2d 798; Olds v. St. Louis Natl. Baseball Club, 119 S.W.2d 1000; Murphy v. Electric Park Amusement Co., 209 Mo. App. 635, 241 S.W. 651; Fairfield v. Bichler, 195 Mo. App. 45, 190 S.W. 32.
Action for personal injury sustained by plaintiff in falling in the entrance lobby of defendant's store. A jury awarded $15,000 damages to plaintiff, and defendant has appealed from the ensuing judgment.
It was alleged in plaintiff's petition that she, a prospective customer at defendant's store, stepped into the lobby entranceway provided by defendant, and was caused to slip and fall by the negligently unsafe condition of the lobby floor; the floor was of "terrazzo with brass division bars in it"; there was lettering of a metallic substance embedded in the floor; the metal letters were polished down to a very slick and slippery [606] surface; the entire floor of the entrance lobby, when wet, was slippery, unsafe and dangerous; and defendant failed to remedy the condition or to warn the plaintiff of the danger. It was further alleged that the defendant had theretofore undertaken to alleviate the dangerous condition by covering a portion of the floor with a rubber matting and that defendant had failed to put the rubber matting in place, although rain had fallen for a considerable period of time and the floor was wet, at the time of plaintiff's injury. Defendant pleaded the general issue, and contributory negligence of plaintiff in failing to observe her surroundings and to "maintain her balance and equilibrium."
Defendant's store fronts the south side of Olive Street, a few doors west of Seventh Street, in the City of St. Louis. The open lobby entrance to the store is eight feet, three and one-half inches in width, and is nine feet long; "there is a slight incline upward" in the lobby floor. The lobby is flanked (east and west sides, and south end) by show windows, except 43½ inches of the south end where a passageway 33½ inches long approaches the store door. The distances from the passageway to the southwest and southeast corners of the lobby are respectively 36¼ inches and 20 inches. The entire floor is paved with "terrazzo," a kind of flooring made of small chips of marble set irregularly in cement and polished. (Terrazzo has been used a great many years in forming surfaces of floors.) Brass strips about an eighth of an inch wide, separating the colors of the vari-colored pattern of the floor, are embedded in the terrazzo and are useful in preventing the flooring from cracking when expanded or contracted by heat or cold. Words in brass lettering. "NATIONAL SHIRT SHOPS." are also embedded in the terrazzo. The word "NATIONAL" is (nearer the store door) south of the words "SHIRT SHOPS." The base of the lettering is toward the street and the base of the words "SHIRT SHOPS" is about 17 inches from the juncture of the lobby floor with the sidewalk. Each letter is 5¾ inches long and the letters vary in width, the letter "N" being 3¾ inches wide, and the letter "A" approximately 6 inches in width. The metal lines forming the letters are three quarters of an inch wide. Between the words "SHIRT SHOPS" and the north end, and close to the north end, of the lobby floor are words (in brass). "Coast To Coast," of smaller sized letters. The entire lettering is spaced in the east approximate two thirds of the front of the lobby floor. Wear has highly polished the surface of the brass; by taking a "straight edge little rule" and placing it on top of a letter, it was found that "it could be rocked up and down, showing the terrazzo . . . had worn down below the surface of the top of the letters" — this, a witness was not able to see with the naked eye, in other words, "standing up you couldn't see that difference." Looking down on the letters, "they present a very highly polished surface"; they are "slippery when they are wet"; relatively, the surface of the letters is more slippery than the surrounding terrazzo — this cannot be seen by one in a standing position. Terrazzo is a common surfacing of floors of lobbies of stores, and brass is used more than some of the other metals for expansion joints in terrazzo flooring, because brass is a "nice looking" metal; its abrasive qualities are "somewhat close" to those of terrazzo; and brass "will weather and won't rust." Brass letters do not aid in the construction or maintenance of the floor, but it is not uncommon to embed brass lettering or designs indicating a store's name or a trademark or trade name in the terrazzo flooring of lobbies, entranceways, and vestibules of stores. Brass is also "quite often" used in hinge and threshold plates of "storeways." It was pointed out by a witness for plaintiff that many threshold plates of brass have corrugations, one half or three quarters of an inch apart, running parallel with the length of the plates. The corrugations have a tendency to be "non-slip." In our case, a shoe slipping parallel with the length, five and three-quarters inches, of a letter "A" in the word "NATIONAL" would not encounter such a corrugation, or other abrasive.
Plaintiff, at about 11:30 in the morning of September 8, 1942, alighted from a bus at the southeast corner of the intersection of Seventh and Olive Streets and proceeded westwardly across Seventh Street, thence along the south sidewalk of Olive Street, passing the windows of defendant's store. She saw an article she "was looking for" on display in the show window west of the store door, and took one step into the open lobby intending to enter the store and purchase the desired article. She had never been in the store before. There was no rubber matting on the lobby floor. It had been raining when plaintiff left her home, [607] and was still raining at the time she reached defendant's store; her shoes had rubber Cuban heels and were wet. She stood momentarily, closing her umbrella. "It was wet all around where I was standing." The floor did not "look slick or slippery." She noticed there was a slight upward incline of the lobby floor. She saw the brass letters in the floor, the word "NATIONAL" being in front of her. She then took another step with her right foot, stepping on one of the brass letters (the second "A" of "NATIONAL"); her foot slipped — she fell backwards and struck her left elbow very hard on the floor, sustaining serious injury. She was assisted into defendant's store and, while she was there, defendant's porter put a rubber matting on the lobby floor covering the "biggest part" of the word "NATIONAL." It was the testimony of plaintiff's husband that he examined the lobby floor at the place his wife had told him she had fallen. It did not look slippery, "but I felt of it and it felt slippery, and when I put my heel on it to see if it was slippery, I could tell it was slippery." Plaintiff's husband had been by defendant's store on other days, for a number of previous years; on those occasions, when it was raining, he had noticed "they had a mat out there . . ."
Defendant (appellant) contends the trial court erred in overruling defendant's motion for a directed verdict.
Defendant urges there was not that quantum of substantial evidence of negligence of defendant to justify the submission of plaintiff's case; and that whatever danger existed was obvious and further warning was unnecessary. Plaintiff (respondent), on the other hand, urges that — since the evidence tends to show the large brass lettering contained no abrasive substance; was not corrugated; was higher than the surrounding surface; had become highly polished, smooth and slick through the years, and was dangerous, particularly when wet; and defendant, having recognized such condition and having customarily covered the lettering with a rubber matting in rainy weather, but on the occasion of plaintiff's injury the lettering, though wet, was not so covered — the question of defendant's liability was for the jury; especially so, since the dangerously slick condition of the lettering was not apparent, and plaintiff, although she looked, had no knowledge or appreciation of the danger.
Defendant, occupant of a building and proprietor of a store, owed plaintiff, a business invitee, the duty to exercise ordinary care to have its premises in a reasonably safe condition. Defendant was not the insurer of the safety of plaintiff. Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Ilgenfritz v. Missouri Power Light Co., 340 Mo. 648, 101 S.W.2d 723; Cameron v. Small, Mo. Sup., 182 S.W.2d 565. The evidence shows terrazzo is commonly used as a flooring in lobbies of stores, and the use of brass in providing expansion joints is likewise common in the construction of terrazzo flooring; it has not been considered that terrazzo (with brass expansion joints) as a flooring is inherently dangerous; and defendant is not to be held negligent merely because of the use of terrazzo with brass expansion joints in the construction of the lobby floor. Cameron v. Small, supra. It is also seen from the evidence that the use of brass in embedded designs or lettering indicating a trade name or mark, or a name of a store is not uncommon in the terrazzo floors of entrance lobbies of stores; however brass becomes smooth and highly polished by wear, and, when so, is slippery when wet. Yet, defendant may not be necessarily subjected to liability because the brass so used was slippery and though the plaintiff's fall was occasioned by the dangerously slippery condition of the brass. There is no liability of defendant for injuries from dangers that are obvious, or as well known to plaintiff as to defendant. Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Vogt v. Wurmb, supra; 20 R.C.L. 56, sec. 52. Whatever danger inhered in the brass lettering was due to the fact that the brass was smooth and highly polished, and to the fact that the lettering was wet. But it was shown in evidence that, looking at the brass letters, "they present a very highly polished surface"; it could be plainly seen that there were no corrugations in the brass lettering; and, at the time plaintiff sustained her injury, she knew the highly polished surface of the brass was wet. The highly polished surface of the brass embedded in the "slight incline upward" of the lobby floor was unlike the more steeply inclined ramp of concrete (worn smooth and, so, slippery when wet), which smoothly worn surface blended into the background of the ordinarily abrasive concrete: nor, was the danger in proximity to a screen door or other obstruction through which an approaching invitee could get but an imperfect view of [608] the slippery floor, as in the case of Cameron v. Small, supra, cited by plaintiff. And plaintiff has cited other cases in which the construction or maintenance of unsafe installations were held to be actionable negligence; however (as in the Cameron case), such unsafe conditions of the installations were not obvious, or, though known to defendant, were not known to plaintiff. See State ex rel. Elliott's Department Store Co. v. Haid, 330 Mo. 959, 51 S.W.2d 1015; State ex rel. First Nat. Bank in St. Louis v. Hughes, 346 Mo. 938, 144 S.W.2d 84 (Bankhead v. First Nat. Bank in St. Louis, Mo. App., 137 S.W.2d 594); Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W.2d 390; Hubenschmidt v. S.S. Kresge Co., Mo. App. 115 S.W.2d 211. In our case, on an invitee's approach, the lettering of smooth, highly polished brass was plainly disclosed. The lettering was embedded in such a position in the lobby floor that it would ordinarily be seen; in fact, the lettering was obviously put in such a position with the purpose that it would be seen, and was seen by plaintiff; and by her seen to be wet. Plaintiff had as much knowledge of the condition of the brass lettering as had defendant.
It is commonly known that a smooth, highly polished surface is slippery when wet. Under the circumstances, a person of ordinary prudence would have appreciated the slippery condition of the wet brass lettering so patently disclosed; although plaintiff did not, according to the evidence. In this connection, we are treating more directly with the legal duty or basis of liability of defendant than with a question of contributory negligence. Defendant, who was not subject to liability for injuries resulting from dangers that were obvious, should not be obliged to anticipate that its patrons, in the exercise of ordinary care, would fail to appreciate dangers generally known to be inherent in conditions that were obvious.
But, it is urged, the unevenness of the lobby floor, due to the wearing of the terrazzo around the brass lettering, was such a defect in the floor as to evidence the failure of defendant to exercise ordinary care in maintaining a reasonably safe floor. It is not contended by plaintiff that her fall was occasioned by the worn condition of the terrazzo; but the unevenness of the floor (due to the worn terrazzo) in proximity to and in connection with the slippery brass lettering is urged as a negligently unsafe condition of the floor. As we have said, the wet brass lettering (on which plaintiff stepped and slipped) would ordinarily be and was seen. Plaintiff's witness, in testifying of the unever condition of the floor had to use a "straight edge little rule" in order to determine there was a difference in the level of the brass and the surrounding terrazzo; "standing up you couldn't see that difference." Floors are not usually perfectly level and are not infrequently worn. It appears to us to be unreasonable that such a negligible fault as the shown slight unevenness of the floor should be held to be the basis of liability. Defendant was not required to have its premises absolutely safe — defendant was not an insurer of its patrons' safety. Hgenfritz v. Missouri Power Light Co., supra; Mullen v. Sensenbrenner Mercantile Co., Mo. Sup., 260 S.W. 982.
Of the evidence that defendant had on other occasions when it was raining, through a number of years, placed a rubber matting on the lobby floor; and had put out the matting after plaintiff had fallen — it was not shown that plaintiff in approaching defendant's store had known of or relied upon a custom or habit of defendant to cover the floor with a rubber matting when the brass was slippery. Since it was not shown that the floor was not reasonably safe, except in the respect that its unsafe condition was obvious, we hold the use of the matting on former occasions, when the floor was wet, should not be considered such an admission of a negligently unsafe condition of the floor as to justify the submission of the issue to the jury. To hold otherwise would be but to penalize defendant for an extra precaution for the safety or convenience of its patrons.
The judgment should be reversed.
It is so ordered. Bradley and Dalton, CC., concur.
The foregoing opinion by VAN OSDOL, C., is adopted as the opinion of the court. All the judges concur.