Summary
In Miles v. Ozark Bowl, Inc., Mo.App., 250 S.W.2d 849, a similar fact element was considered (in connection with other facts) in holding that plaintiff made a submissible case.
Summary of this case from Gilpin v. Gerbes Supermarket, Inc.Opinion
No. 7063.
July 11, 1952.
APPEAL FROM A CIRCUIT COURT, GREENE COUNTY, WARREN L. WHITE, J.
Farrington Curtis, Jack S. Curtis, E. C. Curtis, Springfield, for appellant.
F. B. Freeman, Springfield, Seiler, Blanchard Van Fleet, Joplin, for respondent.
This is an appeal from a judgment for $5,000 to compensate for injuries sustained by a fall in a bowling alley. The first point raised by the appellant is that the trial court committed error in not sustaining its motion for a directed verdict because the evidence failed to show negligence on the part of appellant and because the evidence shows respondent (plaintiff below) was guilty of contributory negligence as a matter of law.
In considering this question, this court must consider the whole evidence and give respondent the benefit of all facts and circumstances favorable to her or tending to support her theory of the case with every reasonable inference that may be drawn therefrom, while evidence of appellant or any evidence favorable to it must be excluded from consideration. Dickinson v. Eden Theatre Co., 360 Mo. 941, 231 S.W.2d 609; Lemonds v. Holmes, Mo.App., 236 S.W.2d 56, 22 A.L.R.2d 418; Weber v. Jones, 240 Mo.App. 914, 222 S.W.2d 957; Keyton v. Missouri-Kansas-Texas R. R. Co., Mo.App., 224 S.W.2d 616; Woolf v. Holton, 240 Mo.App. 1123, 224 S.W.2d 861.
Applying this rule, the facts show that the appellant owned and operated a bowling alley in the eastern part of Springfield. It was new, had been open only a short time and an invitation had been issued for the public generally to come there and bowl or to come as guests and spectators to watch the bowlers and view the premises. Pursuant to this invitation the respondent and her husband visited this bowling alley shortly after sundown, October 1, 1950. It was the first time she or her husband had been upon the premises.
The building in which the alleys are situated faced the west and the entrance was upon the west side and near the north alley, there being 16 alleys in all. The alleys ran east and west and at the west end of these alleys was a lobby extending the full length of the building north and south. On the south wall at the south end of the lobby was a scoreboard some 4 feet in height and 16 feet in length. This board extended to within 3 1/2 feet of the floor of the lobby. At the east side of this lobby, between the lobby floor and the bowling alleys, were three descending steps and the east end of the scoreboard on the south wall extended about 5 feet beyond the riser of the first step from the lobby down to the bowling level. That would leave the west 11 feet of the scoreboard above the level portion of the lobby floor. These scoreboards are necessary to the operation of bowling alleys for they impart to bowlers and visitors information regarding league standings, games won and lost, individual bowler's league average and other information relating to bowling.
After the plaintiff had entered the lobby, visited the rest room and had been introduced to the manager, she observed the scoreboard and went to it to examine the record of the various scores, etc., that had been posted thereon by the management. When looking at this board, she was necessarily facing south. She began an examination of the scores and schedules at the west end, proceeding toward the east side facing the scoreboard, occasionally she would look out over the alleys at the players. She proceeded sidewise, examining documents that were placed upon the scoreboard, stooping to read the lower ones, occasionally glancing at her feet as she proceeded eastward. The lights over the lobby floor were not on. The covering of the floor was of such a nature and color that by virtue of the dim light and the floor coloring, she did not distinguish between the lobby floor and the steps. Neither did she know of the danger or receive any warning by anyone of the steps under the scoreboard. While she was moving along, reading the scoreboard, she came to the first step and fell, receiving grievous injuries. As one witness testified: As she moved from the west to the east, "she shuffled along" and walked sidewise until her foot "stepped over the step" and she fell. There was also evidence (uncontroverted) that the general and established practice and usage of bowling alleys is for the floor beneath the scoreboard to be of one level and that a scoreboard is a "must" in bowling alleys, that they could scarcely be run without them. The keeping of these scoreboards saves lots of time and expense of the operators in bowling alleys. Information, which patrons desire, is made immediately accessible.
No point is made as to the extent of plaintiff's injuries or that the verdict was excessive.
If upon the foregoing statement of facts, all reasonable minds would agree that appellant was not negligent or, though negligent, if all reasonable minds would agree that plaintiff was guilty of contributory negligence, then plaintiff did not make a submissible case and the contentions of the appellant are correct.
But we cannot agree with these conclusions. The appellant had invited the public (which included respondent) to the premises. The respondent was under the duty to use reasonable care for her own safety, but where danger is not so obvious that a person should have seen it in the exercise of ordinary care under the circumstances, failure to discover it, is not negligence, Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533, and one is not required to look out for danger where there is no reason to apprehend any, Long v. F. W. Woolworth Co., Mo.Sup., 159 S.W.2d 619; Willig v. Chicago, B. Q. R. R. Co., 345 Mo. 705, 137 S.W.2d 430, or survey with a critical eye premises that one has a right to assume are maintained in a safe condition.
The appellant was under the duty to use ordinary and reasonable care for the safety of its invitee. Long v. F. W. Woolworth Co., Mo.Sup., 159 S.W.2d 619. Ilgenfritz v. Missouri Power Light Co., 340 Mo. 648, 101 S.W.2d 723; Harper v. First National Bank of Kansas City, Mo.Sup., 196 S.W.2d 265. It was the first time that the respondent had ever entered the premises. She had casually glanced at the bowling alleys and general entrance of the building, had seen the scoreboard but her familiarity with the premises was extremely casual. However, her husband ran a bowling alley in Joplin, she was familiar with the general construction of bowling alleys and she knew the approved custom was to maintain a scoreboard above a floor of one level. This undoubtedly was a reasonable custom because a person reading a scoreboard, as one read, would move from one side to the other, and more conveniently sidewise. The appellant certainly should have anticipated that visitors entering a bowling alley would inspect the scoreboard. To do so, that person must move along the board as the inspection progressed. It was 16 feet in length and could not be read from one position. To place a step 5 feet from the east end of the scoreboard would be a departure from the usual custom and this departure would certainly be accentuated by placing three descending steps there. This departure from custom might not be negligence per se but it certainly was a fact, among others, for the jury to consider. A proprietor with all these facts, it seems to us, could reasonably anticipate that a stranger on the premises reading the scoreboard and moving from the west to east would be liable to injure himself, or herself by falling over the step. The scoreboard, itself, was an invitation to read which necessarily required the party reading to face the board. To read it all, one must move from one end to the other and in doing this, one must necessarily encounter the steps. Furthermore, respondent's evidence showed that the ceiling lights immediately over the lobby were not burning although the lights over the alleys to the east and north were. She was compelled to get near the papers attached to the scoreboard to read them in the dim light, the floor appeared to be the same, even where the steps were located.
We have read the many cases cited upon this question by learned and industrious counsel for appellant but in none of these cases are the facts the same as confront us. Neither have we found any upon an independent investigation. Each case must be considered upon its own peculiar facts. Dickinson v. Eden Theatre Co., 360 Mo. 941, 231 S.W.2d 609. Under the facts here, it was clearly a question for the jury whether the appellant was negligent in the first place and secondly, whether the respondent was guilty of contributory negligence. The jury found against appellants on both points and we are bound by that finding. Joyner v. Kimmell, Mo.App., 217 S.W.2d 724; E. F. Drew Co. v. Brooks Supply Co., Mo.App., 243 S.W.2d 621.
It was also within the province of the jury to say whether there was a causal connection between the negligence of appellant and the injuries received by respondent. Dodson v. Maddox, 359 Mo. 742, 223 S.W.2d 434. The Court did not err in overruling appellant's motion for a directed verdict.
In one of respondent's assignments of negligence in the petition, it is asserted that the
"step and the surface of same was negligently arranged, constructed, located, colored and maintained by defendant so as not to be reasonably distinguishable from the floor surfaces immediately above or below said step and so as not to be reasonably visible to persons using said score-board in the vicinity of said step unless said step was adequately lighted, * * *."
Witness Ritner R. Miles, husband of respondent, when asked what he noticed about the surface of the floor at the step, testified:
"Well, I noticed it was all brand-new and shiny, and that this step — the edge of it is rounding, and it is the same material as the floor all over in general."
This was objected to because there was nothing alleged in the petition about the edge of the step being rounding or the floor shiny. He further testified that the general appearance of the floor and step was the same. We think all this testimony was merely descriptive of the surface of the floor and that it was immaterial that he described the edge of the step as rounding. No mention was made of that in the instructions to the jury. They could not have been misled about the issues they were to pass upon by this statement and no error was committed by the trial court in overruling appellant's objection.
The respondent testified that when she went to the scoreboard she began reading the bulletins attached to it. She did not notice any lights at the ceiling but it was lighter on the scoreboard than at the floor. It was necessary to get close to the scoreboard to read the matter thereon because the lights were dim. She began reading at the west end of the scoreboard and as she read, she moved slowly from west to east, taking short steps, some of them sideways, and perhaps some of them frontwards. Occasionally she looked at the floor but the surface of the floor looked all the same. She did not see any difference in the level or any break in the contour. She did not observe the steps beneath the scoreboard or see any warning that steps were there, neither was any warning given her.
As she progressed eastwardly, she looked at the floor three or four times and it all looked the same. She stooped very close to the scoreboard, facing it, and when she was about halfway along it, she fell, as she expresses it, "I went over board." She was not taking a step at the time she fell.
On cross examination she stated that she didn't expect to find any steps under the bulletin board; that she was moving her feet as she walked.
"Q. You were just standing there and suddenly fell? A. And all of a sudden — I was standing there reading a score and —
"Q. And you fell? A. And all of a sudden I went overboard.
"Q. And you did not move your feet? A. I don't think so."
In response to interrogations by the court, she testified:
"Q. And you are certain that you had not taken a step to move away from that position? A. No, I don't believe so.
"Q. And tell the jury, then, why it was that you fell, if you know. A. Well, possibly I didn't see this step and I got too close to it, and my foot just went over the edge. That would be my impression.
"Q. But if you didn't take a step, if you were standing there reading the bulletin for a moment or two, and just as you finished you fell, without taking another step, how do you explain it? How did it happen? A. That I was just too close to the edge of this step, and when I raised up, possibly my foot went over the edge of the step."
Mrs. Manning, a witness for respondent was watching her when she fell. Relative to the fall she testified:
"A. Yes, I saw what she done. She just shuffled her foot a very little ways and went over the step.
"Q. (By Mr. Freeman) Mrs. Manning, when you spoke of her taking a little step, or a shuffle there, if you were watching her all the time as she moved along from the west to the east, was there any difference in that last step or shuffle which she took just as she fell than what she had been doing? A. Yes. Well, I don't know as there was any difference in it, but she shuffled — just moved her foot, and, as I tell you, she went over the step — stepped off the step."
It is urged by appellant that the evidence given by the respondent is so diametrically opposed to that of her witness, Mrs. Manning, that Mrs. Manning's testimony should be disregarded and was not admissible. We do not agree with this contention. The substance of respondent's testimony is that as she was moving along, reading the scoreboard, she fell. She had not seen the steps and she was not sure as to what caused it. Mrs. Manning was observing her actions, knew exactly what happened and so testified. We think the respondent was entitled to the benefit of all this testimony. The cases cited by appellant are not inconsistent with this conclusion because they were based upon sets of facts entirely different from the facts before us.
Complaint is also made about the testimony of the respondent relative to a trip she made to the bowling alley the day before the trial started and another trip during the progress of the trial. She testified that the lights over the lobby were on at each of these visits and that it was much brighter than it was at the time of her accident.
This testimony all went in without any objection. It is strenuously objected to now because there was no showing that conditions and circumstances existing at the time of her visit were the same as at the time of her injury. She had previously testified that she did not observe for certain whether the ceiling lights over the lobby were on the night of the injury or otherwise. However, her husband positively testified they were not on.
A witness for appellant, an electrical contractor, testified that he had designed and installed the lights in the bowling alley, described them in detail and testified that when they were installed they were designed to be "ten foot candles" and by a light meter test the day of the trial measured the same. If the engineer's testimony was true, then the fact the illumination was greater on the two last visits would tend to prove that the lights over the lobby were not on at the time of the accident. Even if proper objection had been made to this testimony, its reception was not error.
It is contended that respondent's instruction No. 1 is erroneous (a) because it did not require a finding by the jury that the defendant had knowledge of the dangerous quality of the condition complained of and should have reasonably foreseen that some one might receive an injury as the result of the maintenance of the conditions plaintiff relied upon as constituting negligence, (b) that placed undue emphasis upon the practice and usage in bowling alleys of having one continuous floor level beneath the scoreboard and (c) that it did not require a finding that plaintiff was moving along or attempting to move along in front of the scoreboard at the time of her injuries. These objections make is necessary to set out the instruction in full. It follows:
"The court instructs the jury that if you find from the evidence that on or about the 1st day of October, 1951, defendant was the operator of the bowling alley premises mentioned in evidence and that on said date said bowling alley was open and that the public was invited by defendant to enter said premises and that plaintiff was on said premises in response to said invitation, and if you further find from the evidence that defendant in connection with the operation of the bowling alleys on said premises maintained in the lobby a scoreboard or bulletin board fastened flat against a portion of the south wall of the building, with various scores, team averages, and other information posted on said scoreboard for the attention and inspection of persons lawfully on said premises, including plaintiff, and if you further find that there was a step on said premises between the level of the lobby and the portion of the floor below the level of the lobby and that said scoreboard was located in such position that a portion of said scoreboard extended along the wall over and east of said step and so that the public, including plaintiff, in the course of observing and inspecting said scoreboard would encounter said step in moving along the length of said scoreboard and that defendant gave plaintiff no warning of said step and that plaintiff had no knowledge of said step, and if you further find that it is the general and established usage and practice among the operators of bowling alleys in this vicinity to locate and maintain scoreboards along walls in bowling alleys only at such places or points in said premises where the floor beneath said scoreboard is all on the same level and not at such a place or point where the public using said scoreboard will encounter a step in moving along the length of said scoreboard, and if you further find that the defendant in locating and maintaining said scoreboard so that a portion of it extended over and beyond said step as set forth above failed to conform to the general and established usage and practice in said respects regarding scoreboards in bowling alleys in this vicinity and if you further find that the said step was not distinguishable from the floor surfaces immediately above or below said step and that the premises in the vicinity of said step near said scoreboard were dimly lighted and that there was not sufficient illumination in said area for persons to observe said step by the exercise of ordinary care while inspecting said scoreboard and moving along the length of same, and if you further find that defendant by reason of all of the foregoing failed to exercise ordinary care to keep said premises in a reasonably safe condition for persons lawfully on the premises, including the plaintiff, if you so find, and that defendant was thereby negligent, if you so find, and that as a direct and proximate result of said negligence, if any, of the defendant, plaintiff fell down said step and injured herself, while observing and inspecting said scoreboard, and if you further find that plaintiff was at all times in the exercise of ordinary care for her own safety, then you are instructed that your verdict should be in favor of the plaintiff and against the defendant."
The law seems to be well settled that in cases of this nature it must be proved that the defendant knew of the dangerous character of the premises or that, by the exercise of reasonable care, might have anticipated that the condition under the circumstances was liable to cause an accident. McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693; Hughes v. St. Louis National League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R.2d 904; Thompson v. Sunset Country Club, Mo.App., 227 S.W.2d 523; Dickenson v. Eden Theatre Co., 360 Mo. 941, 231 S.W.2d 609.
This instruction, among other things, required the jury to make a finding that the "defendant was thereby negligent" before they could return a verdict for the plaintiff. But nowhere in the instruction is the jury required to find that the defendant knew that the described conditions were dangerous or to find that an accident and injury could have been reasonably anticipated.
In the case of Long v. F. W. Woolworth Co., 232 Mo.App. 417, 109 S.W.2d 85, 90, a woman had caught her heel in a hole in the floor of defendant's store and was injured. At the trial, an instruction was given, (the main instruction as in this case) in which it failed to require the jury to find that the defendant knew of the dangerous quality of the condition created in the floor by the hole therein. The judgment was reversed because of such omission, the court saying:
"It is true that it (the instruction) does require a finding by the jury of the existence of the hole and a finding that the hole rendered the floor unsafe and dangerous. However, it does not require that the jury find that the defendant knew that the existence of the hole rendered the floor unsafe and dangerous. True, it requires the finding that the defendant knew of the existence of the hole; but it might have known of the existence of the hole and still not have known that it made the floor unsafe and dangerous for use. Whether the existence of the hole in the floor in question rendered the floor unsafe and dangerous and whether the defendant was negligent in maintaining the floor with the hole in it were questions about which reasonable minds might differ. * * * Where the question of negligence or the question as to the existence of a negligent condition is one about which reasonable minds may differ, it is always a question for the jury and never one for the court. Clearly, the instruction should have submitted to the jury the questions of whether or not the condition created by the hole in the floor was a negligent condition and whether or not the defendant was guilty of negligence in maintaining it — that is, whether the defendant had knowledge of the dangerous quality of such condition and that its maintenance by it might be negligent."
In Nephler v. Woodward, 200 Mo. 179, 98 S.W. 488, it was held that it was error to omit from the main instruction the requirement that the jury find that the defendant by the exercise of ordinary care could have foreseen the probable danger. But the court went further and held that this omission was cured by this requirement being included in another instruction. In the case at bar, the plaintiff gave three instructions, the main instruction which we are discussing, another defining "negligence" and "ordinary care" and the third on the measure of damages. No other instruction was given that could be construed as supplying the defect in the first instruction. This case was discussed and distinguished in Brown v. Reorganization Investment Co., 350 Mo. 407, 166 S.W.2d 476, but it was not overruled. In the Nephler case [200 Mo. 179, 98 S.W. 491] the court said, in discussing whether a hole in a carpet was dangerous:
"It may or may not be so, according to circumstances; but in submitting the question to the jury they ought not be left to judge by the result alone that it was dangerous, but should be instructed that, although they might find that it resulted in the injury in this instance, yet the defendants would be liable as for neglect of duty only in case the condition was such that reasonably prudent men engaged in that business would, by the exercise of ordinary care, foresee or anticipate the danger. It is easier to judge that the condition was dangerous after the accident occurred than it was before; but defendants are not liable unless before the accident the condition was such that by the exercise of ordinary care they could have foreseen probable danger. The instruction omits to submit this question in the concrete form that the facts in this case call for, but the omission is supplied in an instruction given at the request of defendants."
In Hughes v. St. Louis National League Baseball Club, Mo.App., 218 S.W.2d 632, an instruction containing the defects here complained of, was held to be good by the St. Louis Court of Appeals. However, the Supreme Court, 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R.2d 904, held the instruction bad and reversed the case because the instruction did not require the jury to find knowledge of the dangerous character of the condition, either actual or constructive.
A step, or three steps down, is not ordinarily such a menace to safety as would justify a court in assuming it to be dangerous to persons using them or using the floor above, as a matter of law. The question is not whether the existence of the steps was known to appellant, but did it know them to be dangerous or were they of such a character that appellant should have reasonably anticipated them to be dangerous under the circumstances attending this case. It was a question of fact for the jury and should have been submitted to them in the respondent's main instruction. We think the failure to include such a submission in the main instruction was error.
This is not a case, as in Brown v. Reorganization Investment Co., supra, where the condition was so obviously dangerous that reasonable minds would not disagree upon the question, and where the defect here complained of was supplied by another instruction. In one the danger is clearly apparent to any reasonable person, in the other, reasonable minds might disagree.
It is our opinion that the other objections to this instruction are without merit.
The judgment should be reversed and the cause remanded, because of the defect in respondent's instruction No. 1. It is so ordered.
McDOWELL, J., concurs.
BLAIR, J., dissents in separate opinion.
On Certification to the Supreme Court
I fully concur in the opinion of Vandeventer, P. J., except that portion thereof where Instruction No. 1, given by the trial court, is set out in full, and the case is reversed and remanded for error found to exist therein.
That instruction required the jury to find that it was the general custom of the proprietors or operators of bowling alleys to have the scoreboards therein upon a level with the floor of the lobby, and "at a point where the public using said scoreboard" would find such scoreboard on a level with the remainder of the flooring in such lobby, and that the defendant "failed to conform" to such general custom and "was thereby negligent."
The first case which Judge Vandeventer cites is McCollum v. Winnwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693, 697.
After laboring with the facts, Judge Sturgis finally said:
"The jury should have been required to find not only that the slide in question was in fact constructed and operated in the condition mentioned, but that such construction was negligence, that is, such that a reasonably careful and prudent person would not have constructed and operated it in that condition."
The jury, in that case, was not required to find that the defendants were negligent in maintaining the slide in a condition so it could cause injury to plaintiff. In the case at bar, the jury was required to find defendant negligent.
Quoting from Nephler v. Woodward, 200 No. 179, 188, 98 S.W. 488, Judge Sturgis said:
"`In the opinion in that case it was said the fault of plaintiff's main instruction was that it treated the hole in the carpet, and the dim light, as it would treat facts which constitute an obvious danger; that the jury ought not to be left to judge by the result alone; that the alleged condition was dangerous; and that defendants would be liable as for neglect of duty only in case the condition was such that a reasonably prudent man engaged in that business would, by the exercise of ordinary care, foresee or anticipate danger.'"
That case does not support the conclusion reached in the case at bar, because the criticized instruction in this case required the jury to find "that defendant was thereby negligent."
The next case cited in the main opinion, in finding Instruction No. 1 in this case to be erroneous, is Hughes v. St. Louis National League Baseball Club, 359 Mo. 993, 224 S.W.2d 989, 16 A.L.R.2d 904. In that case the Supreme Court of Missouri en Banc, on page 995 of 224 S.W.2d, held, that the Instruction criticized did not require the jury to find that the conduct of the young man who had caused plaintiff's injury "had continued for such a period of time that defendant in the exercise of reasonable care should have known of it."
In the case at bar, the scoreboard extended all of the time beyond the floor of the lobby and the level thereof, and defendant had permitted it to be in that condition all the time the building was under construction, and the jury was required to find "that defendant was thereby negligent." The construction of the scoreboard in that position was permanent. Defendant must have had knowledge of its position. It must have known that the situation was more or less dangerous at all times, especially when anyone, unfamiliar with the location of such scoreboard, used it for the purpose intended. It seems to me that this fact alone makes the Hughes case insufficient authority, and does not justify the holding of the main opinion that plaintiff's Instruction No. 1 was erroneous.
The next case cited is Thompson v. Sunset Country Club, Mo.App., 227 S.W.2d 523, 524, by Commissioner Wolfe, of the St. Louis Court of Appeals. In that case Mrs. Thompson was injured while following a golf tournament. The accident occurred in a ravine, ordinarily spanned by a bridge, which was then unusable, because of its condition. One of the employees of the Golf Club told Mrs. Thompson "to `Go that way'," which required plaintiff therein to go down into and to come up out of a steep ravine. She was injured by coming in contact in such ravine with a large rock hidden by tall grass.
Plaintiff had a verdict at the hands of the jury. The trial court afterwards sustained defendant's motion to set aside such verdict and plaintiff appealed.
Judge Wolfe affirmed the action of the trial judge in granting a new trial, and said:
"We find no analogy in the facts presented by these cases to the evidence before us for the rocky decent was not an unusual thing to encounter on a golf course since the game is played over acres of irregular terrain, some of which is intentionally left in a rough state. Plaintiff's husband was a golf player and she had seen him play on occasions and knew enough about the game to be familiar with the general character of golf courses. In following the players she assumed the risks ordinarily incident to watching such a match and to walking over the course."
Judge Wolfe concluded his opinion by saying, * * * "there is no evidence that the proprietor had any knowledge of a protruding rock over which a patron might trip."
The last case cited in the main opinion on this point is Dickinson v. Eden Theatre Co., 360 Mo. 941, 231 S.W.2d 609, 612, written by Judge Leedy, in Division No. Two of the Missouri Supreme Court. In that case, plaintiff claimed that the Theatre Company was liable to her for injuries sustained by her in a collision with a newspaper vendor, whom plaintiff claimed was an agent of the defendant. There was no evidence whatever that such newspaper vendor was the agent of, or in the employ of, the defendant.
There was testimony that this same newspaper vendor collided with a young man at another time. That witness had his collision about two weeks before he heard of plaintiff's accident. He was not even certain that his collision occurred before plaintiff's collision.
Judge Leedy said that the collision with such young man was not "sufficient to charge defendant with notice of the likelihood of injury to patrons or invitees resulting from his (the Newspaper Vendor's) presence in the lobby". (Words in parenthesis mine.) Judge Leedy cited and quoted from the Hughes case, supra, and other cases.
I am unable to see that the Dickinson case cited has the slightest application to the case at bar. It was developed that the collision referred to by the young man at another time was a mere striking together of the shoulders, and did not result in a fall at all. There was no evidence that the defendant in that case ever heard of the alleged collision of the young man.
The criticized instruction required the jury to find that defendant in this case was thereby negligent. The main opinion says, "But nowhere in the instruction is the jury required to find that the defendant knew that the described conditions were dangerous or to find that an accident and injury could have been reasonably anticipated."
There is a vast difference between the cases cited and the case at bar. It is conceded, or at least established by the evidence, that an unguarded protrusion of several feet by the scoreboard, extending several feet beyond a lower level, created a dangerous situation for one absorbed in studying such scoreboard, and unfamiliar with its position. Injury to such a person by stepping off of the level of the lobby was not only possible, but probable. Defendant had known of such dangerous condition created by the extension of such scoreboard beyond the level of the lobby, from the very time of the construction of such scoreboard. In this case, the jury was required to find that defendant was thereby negligent.
The objection to plaintiff's Instruction No. 1, seemingly fails when we find that the trial court, at defendant's request, gave Instruction "M", from which I quote in part.
"In order for you to return a verdict for the plaintiff you must further find and believe from the preponderance or greater weight of the credible evidence that the manner in which the bulletin board mentioned in evidence was located in defendant's premises constituted negligence on the part of the defendant."
What is said in the main opinion seems to me to be in conflict with what all this Court has said in Davis v. City of Mountain View, Mo.App., 247 S.W.2d 539, a very recent case.
I think that the jury reasonably could have found that defendant should have anticipated that a person or patron, unfamiliar with the step off, before all of the scoreboard had been read, when such person was absorbed in the reading of the scoreboard, could have been injured by unexpectedly stepping off of the lobby floor on to a step or floor beneath the level of such lobby floor, and that the jury had the right to find that defendant was negligent in leaving the scoreboard in that position, and that Instruction No. 1 was not erroneous.
For these reasons, I dissent.
Not only do I dissent from the action of the majority of this Court in reversing the action of the Circuit Court of Greene County, Missouri, and remanding this case to such court for retrial on account of supposed error found by them to exist in Instruction No. 1 to the jury upon the trial of this case in such trial court, as I stated in a dissenting opinion filed by me in this Court on July 11, 1952; but I also believe that the order of this Court, in overruling respondent's motion for rehearing, is in conflict with the case of Brown v. Reorganization Inv. Co., 350 Mo. 407, 166 S.W.2d 476.
I also believe that the order of the majority of this Court in so overruling is in conflict with another opinion of the Supreme Court of this State, reported in 334 Mo. 941, 69 S.W.2d 666, in the case of Jenkins v. Missouri State Life Insurance Company.
I therefore order that this case be certified to the Supreme Court of the State of Missouri, by the Clerk of this Court, as provided in Section 10, Article V, of the Missouri Constitution, adopted in the year 1945, V.A.M.S.