Summary
referring to "antislip preparation" not applied or done negligently
Summary of this case from Williams v. Junior College DistOpinion
No. 40439.
January 12, 1948. Rehearing Denied, February 9, 1948.
1. CERTIORARI: Appeal and Error: Procedure Same as Appeal. Under the 1945 Constitution the Supreme Court determines all cases coming from a Court of Appeals, whether by certification, transfer or certiorari, the same as on original appeal.
2. NEGLIGENCE: Customer Slips on Floor: Sufficient Notice. Defendant's employees had sufficient notice that frozen muck was rapidly collecting on the floor near the entrance to the store.
3. NEGLIGENCE: Customer Slips on Floor: Submissible Case. There was a submissible case of negligence in permitting slippery frozen muck to collect on the floor near the entrance to the store, causing plaintiff customer to slip and fall.
AFFIRMED.
Clay C. Rogers and Mosman, Rogers, Bell Conrad for appellants.
(1) The evidence and the reasonable inferences arising therefrom are insufficient to charge the defendants with negligence. Plaintiff's fall was not caused by any negligence of the defendants; the condition which caused plaintiff to fall was not shown to have been caused by or known to defendants. Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W.2d 555; Heidland v. Sears Roebuck, 110 S.W.2d 795; Keen v. City of St. Louis, 189 S.W.2d 139; Brunet v. S.S. Kresge Co., 115 F.2d 713; Parsons v. Green, 10 N.W.2d 40; S.S. Kresge v. Fader, 116 Ohio St. 718, 158 N.E. 174; Miller v. Gimbel Bros., 262 N.Y. 107, 186 N.E. 410. (2) The plaintiff was guilty of contributory negligence as a matter of law. She admitted that she was not paying any attention to the conditions. Heidland v. Sears, Roebuck Co., 110 S.W.2d 795; State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W.2d 99. (3) The court erred in giving Instruction 1 for the reason that the evidence was not sufficient upon which to submit the instruction and for the reason that the instruction did not submit the specific cause of plaintiff's fall, and for the further reason that it gave to the jury a roving commission to find the defendant negligent on matters not confined to the evidence. The instruction was not within the purview of the evidence and was therefore an error. Degonia v. Railroad, 224 Mo. l.c. 589, 123 S.W. 807; Sparkman v. Wabash R. Co., 191 Mo. App. 463, 177 S.W. 703; Wells v. Raber, 166 S.W.2d 1073; Croak v. Croak, 33 S.W.2d 998; Jos. Greenspon's Son Pipe Corp. v. Hyman-Michaels, 133 S.W.2d 426. (4) The verdict of the jury is grossly excessive. There was no evidence of any permanent injuries, and no evidence to connect the conditions of which plaintiff claimed at the time of trial with the injuries sustained when she fell. Brooks v. McCray, 145 S.W.2d 985.
Trusty Pugh, Guy W. Green, Jr., and A.B. Taylor for respondents.
(1) The court properly overruled the motions for directed verdict offered by defendants because the evidence showed a dangerous condition of the floor known to defendants in plenty of time to be made safe in the exercise of ordinary care. Belzer v. Sears, Roebuck Co., 76 S.W.2d 701; Bankhead v. First Natl. Bank in St. Louis, 137 S.W.2d 594, certiorari quashed. State ex rel. First Natl. Bank v. Hughes, 144 S.W.2d 84; Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Stoll v. First Natl. Bank of Independence, 134 S.W.2d 97; Smith v. Sears, Roebuck Co., 84 S.W.2d 414; Hubenschmidt v. S.S. Kresge Co., 115 S.W.2d 211; Williams v. K.C. Terminal Ry., 231 S.W. 954; Perringer v. Lynn Food Co., 148 S.W.2d 601; Van Brock v. First Natl. Bank, 161 S.W.2d 258; Smith v. Sears, Roebuck Co., 117 S.W.2d 658; Watson v. Aronberg, 15 S.W.2d 356; Ryan v. Standard Oil Co. of Ind., 144 S.W.2d 170; Summa v. Morgan Real Estate Co., 165 S.W.2d 390. (2) The evidence did not show that plaintiff was guilty of contributory negligence as a matter of law. Long v. Woolworth, 159 S.W.2d 619; State ex rel. Elliott's Dept. Store v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Stoll v. First Natl. Bank, 345 Mo. 582, 134 S.W.2d 97; Ilgenfritz v. Mo. Power Light Co., 340 Mo. 648, 101 S.W.2d 723; Cameron v. Small, 182 S.W.2d 565; Bankhead v. First Natl. Bank in St. Louis, 137 S.W.2d 594; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Blackwell v. J.J. Newberry, 156 S.W.2d 14; Summa v. Morgan Real Estate Co., 156 S.W.2d 390; Becker v. Aschen, 131 S.W.2d 533. (3) The court properly gave plaintiff's Instruction 1 which was supported by the evidence. Rearden v. F.W. Woolworth Co., 154 S.W.2d 373; Propst v. Capital Mutual Assn., 233 Mo. App. 612, 124 S.W.2d 515; Start v. National Newspapers' Assn., 253 S.W. 42; Lueking v. City of Sedalia, 167 S.W. 1152; Daneschocky v. Sieben, 195 Mo. App. 470, 193 S.W. 966; Shafir v. Sieben, 233 S.W. 419, 17 A.L.R. 637. (4) The verdict of the jury was not excessive. Marshall v. St. Louis Union Trust Co., 196 S.W.2d 435; Rockenstein v. Rogers, 31 S.W.2d 792; Plater v. Kansas City, 68 S.W.2d 800; Couch v. St. Louis Public Service Co., 173 S.W.2d 617.
Cecile Clifford recovered judgment for $5,000 against the F.W. Woolworth Company and another for her personal injuries caused by slipping and falling on the floor in a Woolworth store in Independence. On appeal to the Kansas City Court of Appeals the judgment was affirmed. Clifford v. F.W. Woolworth Co. (Mo. App.), 201 S.W.2d 416.
We granted certiorari on the contention of the Woolworth Company that the record failed to show the dangerous condition of the floor had existed for any length of time prior to the fall, so that the company could not be charged with notice of the dangerous condition. On the question of notice, the company based its petition for certiorari on three cases, viz.: 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; and Williams v. Kansas City Terminal Railway Co., 288 Mo. 11, 231 S.W. 954. The Trading Post and McKeighan cases announce the established rule that the burden is on the customer who falls by slipping upon some foreign substance on a store room floor to produce evidence showing the presence of the foreign substance on the floor for a sufficient time to give notice of its presence to the storekeeper. Such evidence was not adduced in these two cases [264] so the storekeeper was held not liable. The Williams case turned on a different question. That case pointed out that the presence of dampness on the railroad station's stairway could have been reasonably anticipated because it had been raining all day, but that even though the stairs were wet they were still reasonably safe because they were equipped with a safety tread of standard construction.
We now turn to the transcript on appeal in the case at bar to ascertain what the evidence showed on the question of notice. We may do so despite the fact this is a proceeding in certiorari because under the new 1945 Constitution we determine all cases coming here from a Court of Appeals, "whether by certification, transfer or certiorari, the same as on original appeal." Art. V, Sec. 10, Constitution 1945.
The evidence in the transcript on appeal shows it was a wet, sloppy, February day. Customers had been tracking muck into the store all day and to such extent that an antislip preparation called Feldspar was sprinkled on the floor to keep it from becoming slippery. The muck accumulated so rapidly it was necessary to mop the floor at thirty minute intervals. This of course would remove the antislip preparation and it would have to be applied anew. There was evidence that the floor at the entrance where the accident occurred had been mopped about thirty minutes before plaintiff entered the store some time after four-thirty in the afternoon. Out of doors the ground had frozen over by that time of day, and there were patches of ice on the sidewalks. Plaintiff was a step or two inside the store when she slipped on an accumulation of dark, wet, muddy substance on the floor.
It seems clear there is no issue as to notice in this case. The conduct of Woolworth's employees in mopping the floor, and applying the antislip preparation, and their testimony showing their knowledge of the rapidity with which the muck accumulated throughout the day all definitely shows they were fully aware of the dangerous condition. The real issue is whether ordinary care was used to remedy a condition known to exist. The situation in this case is more akin to that in State ex rel. First National Bank in St. Louis v. Hughes, 346 Mo. 938, 144 S.W.2d 84, than to the cases relied on.
Accordingly, on the issue of notice our writ of certiorari was improvidently issued and is hereby quashed.
In deciding the issue whether defendants exercised ordinary care to remove a dangerous condition and the other issues raised on appeal, we adopt the opinion of the Kansas City Court of Appeals as the opinion of this court for the determination of this case. That court held plaintiff made a submissible case in that the jury could reasonably infer from the evidence that the condition of the floor when plaintiff fell had existed for a half hour or more; that defendants did not mop it and apply non-skid material as claimed, or if they did, it was done negligently and ineffectively; that defendants knew, or by the exercise of ordinary care could have known, of the condition existing when plaintiff fell in time to have removed the accumulated muck and failing to do so caused plaintiff to fall.
The other contentions raised in the appeal have also been fully determined by the Court of Appeals' opinion, which we have made our own.
Judgment affirmed. All concur.