Summary
In Lindquist v. S. S. Kresge Co., 345 Mo. 849, 136 S.W.2d 303, 304, the court stated that the usual hone finished marble steps are neither slick, polished, nor slippery, and that heavy traffic adjacent to the handrail had caused a step to be "cupped out" 5/8 inch by actual measurement.
Summary of this case from Ostresh v. Illinois Terminal Railroad CompanyOpinion
January 23, 1940.
1. APPEAL AND ERROR: Directed Verdict. Errors assigned on the refusal of certain testimony and on giving certain instructions are not for consideration by the Supreme Court if a verdict should have been directed for defendant.
2. NEGLIGENCE: Dangerous Premises. The owner of premises is not an insurer of persons who enter thereon even when he has invited them to enter.
There is no presumption of negligence on the part of an owner or occupier of premises merely upon showing that an injury has been sustained by one while rightly upon the premises.
The true ground of liability in such case is the proprietor's superior knowledge of the perilous instrumentality of the danger therefrom to persons going upon the property.
3. NEGLIGENCE: Dangerous Premises. In an action for damage to plaintiff while descending a stairway in defendant's store, evidence by the plaintiff and her daughter that it was "dark" and "dim" on the stairway was mere conclusion and should be ignored.
Where plaintiff did not offer testimony that the alleged dangerous condition could not be observed by customers using the stairway but testified that she had visited the store previously over a period of years and "could see very plainly going about the stairway," and where it was shown that the stairway was lighted by an electric lamp, a submissible case was not made for the jury.
Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
AFFIRMED.
S.H. Goldsmith and Johnson, Garnett Quinn for appellant.
(1) The trial court committed reversible error in giving defendant's Instruction N, telling the jury that if the injuries to plaintiff were accidental, she could not recover. There is no evidence to justify an accident instruction in this case. Hogan v. K.C. Pub. Serv. Co., 322 Mo. 1103, 19 S.W.2d 707; Brewer v. Silverstein, 64 S.W.2d 289; Wilson v. Chattin, 335 Mo. 375, 72 S.W.2d 1001; Goodwin v. Mo. Pac. Ry. Co., 335 Mo. 398, 72 S.W.2d 988; Tash v. St. L.-S.F. Ry. Co., 335 Mo. 1148, 76 S.W.2d 698; Buchanan v. Wolff, 105 S.W.2d 30; Walker v. Klein, 127 S.W.2d 51. (2) Defendant's Instruction O is reversibly erroneous because casting the burden of proof upon plaintiff as to any and every issue submitted, thus erroneously placing the burden of proof on the issue of contributory negligence on plaintiff. Manar v. Taetz, 109 S.W.2d 721. (3) The trial court erred in rejecting plaintiff's offer of proof of other accidents, the evidence thereof tending to establish the dangerous character of the defective condition of the step and defendants' knowledge of the danger. Asbury v. Fid. Natl. Bank Trust Co., 100 S.W.2d 946; Hebenheimer v. St. Louis, 269 Mo. 92, 189 S.W. 1180; Manson v. May Department Stores, 71 S.W.2d 1081. (4) The demurrer to the evidence was properly overruled, and the trial court was in error in overruling the motion for new trial upon the stated ground that the demurrer should have been sustained. Capstick v. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480. (5) The trial court, by overruling the motion for new trial upon the stated ground that "the verdict is for the right party," erroneously attempted to consider and finally determine the weight of the evidence, thereby denying plaintiff's right of trial by jury contrary to the provisions of Section 28 of Article II of the Constitution of Missouri. Sec. 28, Art. II, Mo. Const., Sec. 1003, R.S. 1929; Boyce's Admr. v. Smith's Admr., 16 Mo. 321; Van Loon v. St. Joseph Ry., L. P. Co., 271 Mo. 209, 195 S.W. 737; Nelson v. Heine Boiler Co., 323 Mo. 826, 20 S.W.2d 911; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126. (6) Under the evidence the negligence of defendant Patrick was for the jury, and the trial court erred in compelling a nonsuit as to him.
Roger C. Slaughter and Henry L. Jost for respondents.
(1) Defendants each were entitled to a peremptory instruction and a directed verdict in their favor, as requested at the close of plaintiff's evidence, and again at the close of all the evidence, and the trial court was right in refusing plaintiff a new trial, on the assigned and correct ground that it should have sustained the separate instruction requests of the defendants for a peremptory verdict, and moreover, because the verdict of the jury being for defendant Kresge Company was for the right party. This for several reasons: (a) The petition did not state a cause of action. The averments therein that the steps had worn smooth and slick from use and wear, in and of itself stated no cause of action, and said facts did not warrant the asserted conclusions of the pleader that the steps were so "dimly and improperly lighted" that the same were "in an unsafe and dangerous condition." Lappin v. St. L. Natl. League Baseball Club, 33 S.W.2d 1026; Myers v. Strauss, 264 S.W. 801; Mulen v. Sensenbrenner Merc. Co., 260 S.W. 984, 33 A.L.R. 179; Stein v. Buckingham Realty Co., 60 S.W.2d 714; Boyd v. Logan-Jones D.G. Co., 340 Mo. 1106, 104 S.W.2d 348, Zasemowich v. Amer. Mfg. Co., 213 S.W. 802; Peck v. Yale Amusement Co., 195 S.W. 1034; State ex rel. Smith v. Sevier, 92 S.W.2d 102. (b) No cause of action can be predicated alone on evidence of marble steps worn down by use five-eighths of an inch where travel thereover is greatest, especially when such material is in common use and regarded as the very best that can be used for such purpose. (c) Plaintiff's evidence utterly failed to show that the stair step whereon plaintiff claims she fell, or that any part of the stairway of which the same was a part, was "dimly and improperly lighted," and on that ground and because of a failure of proof on that point, as well as on the preceding points above made and stated, plaintiff was not entitled to recover, and defendants were entitled to a directed verdict. Peck v. Yale Amusement Co., 195 S.W. 1034; Main v. Lehman, 243 S.W. 91, 294 Mo. 588; Boyd v. Logan-Jones D.G. Co., 104 S.W.2d 348, 340 Mo. 1100; Capstick v. Sayman, 327 Mo. 1, 34 S.W.2d 480. (d) Plaintiff by walking up the stairs "ten to fifteen minutes" before her descent thereon, and by her use thereof and on the same stairs and steps previously for several years (20, on cross-examination), with no appreciable difference in lighting thereof acquired and had the same knowledge of the conditions of which she complained, as did the defendant's and using such steps and stairway with such knowledge, or opportunity for such knowledge, she was not entitled to recover, and the verdict of the jury was properly for defendant. Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Paubel v. Hitz, 339 Mo. 278, 96 S.W.2d 369; Mulen v. Sensenbrenner Merc. Co., 260 S.W. 985; 33 A.L.R. 180; Cash v. Sonken-Galamba Co., 17 S.W.2d 927, 322 Mo. 357, 20 R.C.L., p. 31, sec. 24; Boyd v. Logan-Jones D.G. Co., 340 Mo. 1107; Curtis v. Capitol States Co., 27 S.W.2d 750.
Action to recover $15,000 for personal injuries. Plaintiff sustained injuries while descending a stairway in defendant company's store. Defendant Patrick was manager of the store. An involuntary nonsuit was taken by plaintiff as to Patrick, and the jury found in favor of the company. The court overruled plaintiff's motion for a new trial, but made no order with reference to plaintiff's motion to set aside the nonsuit. Unaware of the failure to rule on the motion to set aside the nonsuit, plaintiff took an appeal, which is docketed as No. 35,255. Later the motion to set aside the nonsuit was overruled and an order of dismissal entered. Plaintiff appealed from said order, which is docketed as No. 36,713. The appeals have been consolidated, and the cause is for consideration on the order overruling the motion for a new trial and the order of dismissal following the overruling of the motion to set aside the nonsuit.
In substance, the petition alleged that the defendants negligently permitted the stairway steps to become worn, uneven, smooth, slick and slippery, and negligently permitted the stairway to be so "dimly and improperly lighted" that persons using the same could not, by the exercise of ordinary care, discover that the steps were worn, uneven, smooth, slick, slippery and dangerous.
On overruling the motion for a new trial and the motion to set aside the nonsuit, the trial judge stated that the verdict was for the right party and that the court erred in refusing to direct a verdict for both defendants at the close of all the evidence. We construe the statement to mean that the trial judge was of the opinion that a verdict should have been directed for both defendants and for that reason "the verdict was for the right party".
Plaintiff assigns error on certain instructions and assigns error on the refusal of certain testimony as evidence in the cause. Even so, said assignments are not for consideration if a verdict should have been directed for defendants.
The facts for consideration on demurrer follow: Defendant company owned and operated a retail store in Kansas City, Mo. On the east side of the storeroom a wide stairway extends upward and eastward to a landing ten feet wide and twenty-two feet long. From this landing two separate stairways extend upward and westward, one from the north side of the landing and the other from the south side of the landing. The stairways are of Tennessee and Alabama marble — materials commonly used in public buildings. They had the usual "hone finished" steps, which are neither slick, polished nor slippery. It is a smooth and standard finish for marble steps. Appropriate hand rails are on each side of the stairways. The steps were worn by constant use. The heavy traffic is adjacent to the handrails, which caused that part of the step in question to be worn or "cupped out" five-eighths of an inch, as shown by actual measurement. Constant use tended to increase the smoothness of the steps.
Over the landing are three electric lights with frosted globes about twelve inches in diameter. They are about twenty-five feet from the landing floor. On the second floor the lights are over the counters. In the south wall of the building are large windows located near the landing.
At 11:30 A.M. on February 21, 1934, plaintiff and her daughter went to the store as prospective customers. After "shopping" on the first floor for ten minutes they ascended the stairway to the landing and proceeded westward up the stairway to the second floor. After looking about on said floor for fifteen minutes they proceeded on the south side of the south stairway to the landing. The daughter preceded the plaintiff down the stairway. Plaintiff's right foot slipped on the fourth step from the top, which caused her to fall. The daughter assisted her to a sitting position on the step.
Plaintiff testified that while sitting on the step she noticed that it was worn, uneven, slick and tan colored; that she also noticed the three lights over the landing and the lights over the counters on the second floor; that the counter lights did not directly light the stairway but gave a shadowy light; that the lights over the landing were covered by frosted globes about twelve inches in diameter and "gave a dim light;" that she had no "difficulty in getting around for lack of light;" that she had been in the store as a customer three or four times a year for three or four years prior to her injury; that on the day in question she ascended to the second floor over this particular stairway; that at the time she weighed 184 pounds and was wearing shoes with two inch heels.
The daughter testified that after the injury she examined the step; that it was slick, smooth and "worn about an inch at the deepest part;" that she noticed the lights over the landing were covered with frosted globes, and noticed the lights over the counters on the second floor; that the lights over the landing were "dim;" that the lights over the counters did not directly light the stairway; that while descending, the body shades the light from the second floor; that she had been "shopping" in the store quite a number of times each year for a period of eight years prior to the injury; that on those occasions she went to the second floor by the stairway; that she noticed no change in the lights during that time; that "because it was dark" she had difficulty in finding the "things" dropped from her mother's hand bag at the time the mother fell; that the "darkness" had not occurred to her prior to the injury; that she could see very plainly going about the stairway and had no difficulty getting about the store; that prior to the injury she had no occasion to think of either the lights or the steps; that the wire in the glass of the large windows near the stairway diminishes the light from the outside, but she could see the building across the alley.
The applicable rule is stated by a standard text as follows:
"The mere ownership of land or buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of such persons, even when he has invited them to enter. Nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises. The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured, that a recovery is permitted. . . . And, hence, there is no liability for injuries from dangers that are obvious, or as well known to the person injured as to the owner or occupant." [20 R.C.L. 56, sec. 52.]
The rule is supported by decisions of this court as follows: Vogt v. Wurmb, 318 Mo. 471, 300 S.W. 278; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Ilgenfritz v. Mo. Power Light Co., 340 Mo. 648, 101 S.W.2d 723; Mullen v. Sensenbrenner, 260 S.W. 982; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Cash v. Sonken-Galamba Co., 322 Mo. 349, 17 S.W.2d 927, Boyd v. Logan Jones D.G. Co., 340 Mo. 1100, 104 S.W.2d 348; Peck v. Yale Amusement Co., 195 S.W. 1033.
Confronted with the rule, plaintiff states that she seeks recovery on "a defective condition of the stairs in combination with improper lighting thereof."
It follows that the question on demurrer is reduced to a consideration of the testimony to determine if there was substantial evidence tending to show that defendants did not exercise ordinary care to provide sufficient light for customers using the stairway. In considering the question we ignore, as mere conclusions, the testimony of plaintiff and her daughter that it was "dark" and "dim." [Peck v. Yale Amusement Co., supra.]
Plaintiff testified that while sitting on the step she noticed its worn condition. She did not testify that said condition could not be observed by customers using the stairway. On the contrary, she testified that she had visited the store as a customer over a period of years and had no "difficulty in getting around for lack of light".
The daughter testified that after the injury she also noticed the worn condition of the step. She also did not testify that said condition could not be observed by customers using the stairway. On the contrary she testified that she also had visited the store as a customer over a period of years and could see "very plainly going about the stairway." The difficulty she had in finding the small articles dropped from the handbag is not evidence of insufficient light. All of us have had experiences of that kind. Furthermore, the landing and stairway were lighted by electric lights enclosed by large globes. Furthermore, the body of a person descending the stairway could not interfere with said lights, for they are in front of the person descending.
Plaintiff cites Capstick v. Sayman Products Co., 327 Mo. 1, 34 S.W.2d 480, and Busby v. Southern Bell Telephone Co., 287 S.W. 434.
In the Capstick case there was an issue of construction. The light was in the rear of a person descending the steps, and one descending "could hardly see the outlines of the steps."
In the Busby case there was evidence tending to show foreign substances on the steps, to-wit: soap and water.
We think there was no substantial evidence tending to show that defendants were not in the exercise of ordinary care in lighting the stairway. The judgment should be affirmed. It is so ordered. All concur.