Opinion
No. 39726.
April 30, 1946.
1. NEGLIGENCE: Slippery Entrance to Store: Submissible Case. Plaintiff's evidence that a metal strip at the entrance to defendant's store had worn smooth and slippery and such condition was concealed by a film of snow when plaintiff slipped and fell, plaintiff being the third person who had slipped there that day, made a submissible case.
2. EVIDENCE: Negligence: Slippery Entrance to Store: Accidents by Others Admissible. It was not error to admit plaintiff's testimony that defendant's store manager had stated that plaintiff was the third person to fall there that day.
3. TRIAL: Jury Argument Not Prejudicial. Plaintiff's jury argument as to what would have been the testimony of defendant's store manager if he had been called to the stand was not prejudicial. And another objection was sustained.
4. TRIAL: Burden of Proof Instructions Properly Refused. The trial court properly refused three specific instructions on burden of proof which were covered by a general instruction which was given.
5. TRIAL: Instruction in Conjunctive Not Error. An instruction in the conjunctive was not error even though there was no evidence to support one of the charges.
Appeal from Circuit Court of City of St. Louis. — Hon. Charles B. Williams, Judge.
AFFIRMED.
Wayne Ely for appellant.
(1) The law does not require a storekeeper to combat the elements to such an extent as to keep the entrance to his premises absolutely safe under weather conditions such as existed at the time plaintiff fell, and there was no showing that defendant could have done anything to prevent the step being slick at the time plaintiff fell. Reedy v. Brewing Assn., 161 Mo. 523, 61 S.W. 859; Bell v. Siegel, 136 N.E. 109; Hallock v. Ballachey, 258 A.D. 774, 15 N.Y.S.2d 853; Meyer v. Michigan Central Ry. Co., 147 N.W. 485; Beierness v. City of Missouri Valley, 144 N.W. 628. (2) The courts will judicially notice that ice and snow make walking difficult, and make sidewalks and steps slick. Reedy v. Brewing Assn., 161 Mo. 523, 61 S.W. 859; Spoeneman v. Uhri, 60 S.W.2d 9. (3) No causal connection was shown between defendant's alleged negligence and plaintiff's injury. Reedy v. Brewing Assn., 161 Mo. 523, 536, 61 S.W. 859; Beierness v. City of Missouri Valley, 144 N.W. 628; Madden v. Red Line Service, Inc., 76 S.W.2d 435; Rose v. Thompson, 346 Mo. 395, 141 S.W.2d 824; Faust v. East Prairie Milling Co., 20 S.W.2d 918. (4) The condition of ice and snow on sidewalks and outside steps was general, and plaintiff was fully aware of such condition, and was or should have been aware of all danger, if any, in stepping on the snow-covered step leading to defendant's store. Therefore, plaintiff was guilty of contributory negligence as a matter of law. Mullen v. Sensenbrenner Mercantile Co., 260 S.W. 982; Cash v. Sonken-Galamba Co., 17 S.W.2d 927; Reedy v. Brewing Assn., 161 Mo. 523, 61 S.W. 859. (5) The weather report introduced in evidence by defendant affirmatively proves that the precipitation of sleet and snow was so continuous and so near the time of the accident, as to acquit defendant of negligence for failing to make the step dry and free of ice or snow at the time plaintiff slipped on it. Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 754; Reedy v. Brewing Assn., 161 Mo. 523, 61 S.W. 859; Hallock v. Ballachey, 258 A.D. 774, 15 N.Y.S.2d 853; Meyer v. Michigan Central Ry. Co., 147 N.W. 485; Bell v. Siegel, 136 N.E. 109. (6) The court erred in permitting plaintiff to testify that the manager of the Kroger store told her she was the "third person that fell there today," and in permitting plaintiff's counsel to base an argument on such testimony. Such statement, if made by the manager, was a mere narrative of a past transaction, was outside the scope of the manager's employment; and could not constitute an admission on the part of defendant. State ex rel. S.S. Kresge Co. v. Shain, 101 S.W.2d 14; State ex rel. Vesper-Buick v. Daues, 19 S.W.2d 700; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1, 84 S.W. 26. (7) The court erred in permitting plaintiff's counsel to state in his closing argument to the jury that plaintiff's testimony that the store manager had told her that three other women had fallen there that day before she fell, "stands uncontradicted, and that simply shows this, that they knew of this condition before Mrs. Corley fell and was injured in ample time to have corrected it and have rendered it reasonably safe, so that she would not fall, but carelessly failed to take any steps, apparently, to do so." "Now, on that evidence, gentlemen, uncontradicted as it is, what conclusion can you reach from this evidence except that Mrs. Corley slipped and fell on this step, because of its condition, and sustained these injuries." State ex rel. S.S. Kresge Co. v. Shain, 101 S.W.2d 14; State ex rel. Vesper-Buick v. Daues, 19 S.W.2d 700; Redmon v. Metropolitan St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Walsh v. Terminal Railroad Assn. of St. Louis, 182 S.W.2d 607; Wells v. Wells, 45 S.W. 1095; Evans v. Town of Trenton, 20 S.W. 614, (8) The court erred in permitting plaintiff's counsel to state in his closing argument to the jury that if the store manager had testified he would not have denied that "three other women had fallen there before Mrs. Corley fell," but "would have told you that was true," and the court erred in overruling defendant's objection to that argument. State v. McGrath, 128 S.W. 966; Jackson v. City of Malden, 72 S.W.2d 850; State v. Connor, 252 S.W. 713; Evans v. Town of Trenton, 20 S.W. 614. (9) The court erred in permitting plaintiff's counsel to argue that he had "tried to offer the deposition" (of the store manager) "in evidence. He testified — you mean about the other women falling — he testified in the deposition that this step was smooth, worn and slippery, on page 7," and the court erred in overruling objection to that argument. The deposition was not in evidence. It was offered by the plaintiff, and defendant's objection to the offering was sustained because the manager was present in court and available as a witness. Haynes v. Town of Trenton, 18 S.W. 1003; Chaffin v. Kansas City, 92 S.W.2d 917; State v. McGrath, 128 S.W. 966; State v. Connor, 252 S.W. 713; Ryan v. Sheffield Car Equipment Co., 24 S.W.2d 166; Walsh v. Terminal Railroad Assn. of St. Louis, 182 S.W.2d 607. (10) The court erred in permitting counsel to repeat that the picture of the step at defendant's store entrance (Plaintiff's Exhibit I) was taken by defendant, and for not rebuking counsel, and in permitting counsel to state to the jury, after defendant's objection was sustained: "You have seen the picture, and it looks like a pretty smooth step to me. That is the old tactics of Mr. Ely, and I don't think he is going to be able to put it over on this jury by ridiculing, just like he tried to ridicule poor Mrs. Hornsby, for which he apologized. If he is able to put that over on this jury I will be very much surprised." Ryan v. Sheffield Car Equipment Co., 24 S.W.2d 166; State v. Connor, 252 S.W. 713; Beck v. Railroad, 129 Mo. App. 7, 108 S.W. 132; Chaffin v. Kansas City, 92 S.W.2d 917; Walsh v. Terminal Railroad Assn., 182 S.W.2d 607. (11) The court erred in giving Instruction 1. This instruction was broader than the evidence in that it permitted the jury to find that the step was "slick, slippery, dangerous, and not reasonably safe to step or walk upon" when dry. State v. Thompson, 337 Mo. 328, 85 S.W.2d 594. (12) The court erred in refusing Instruction C requested by defendant. Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30; Borgstede v. Waldbauer, 88 S.W.2d 373; Bashkow v. McBride, 177 S.W.2d 637; Gower v. Trumbo, 181 S.W.2d 653; Jennings v. Cooper, 230 S.W. 325; Brokerick v. Brennan, 170 S.W.2d 686; Root v. Quincy, O. K.C.R. Co., 141 S.W. 610; Bloecher v. Duerbeck, 62 S.W.2d 553. (13) The court erred in refusing Instruction D requested by defendant. State v. Thompson, 337 Mo. 328, 85 S.W.2d 594. (14) The court erred in refusing Instruction E requested by defendant. State v. Thompson, 337 Mo. 328, 85 S.W.2d 594.
William Kohn for respondent.
(1) Plaintiff's testimony was sufficient to entitle her to go to the jury upon the question of defendant's negligence, as well as upon the claim of contributory negligence. Bankhead v. First Nat. Bank, 137 S.W.2d 594, certiorari quashed in State ex rel. v. Hughes, 144 S.W.2d 84; Perringer v. Lynn Food Co., 148 S.W.2d 601; Glasgow v. St. Joseph, 184 S.W.2d 412; Harrison v. K.C.S. Light Co., 195 Mo. 606; Brash v. St. Louis, 161 Mo. 433; Vogelgesang v. St. Louis, 139 Mo. 127; Meadows v. Wabash, 221 Mo. 373; Savona v. May Dept. Stores, 71 S.W.2d 157; Cameron v. Small, 182 S.W.2d 565. (2) The statement of defendant's store manager, made in the store right after plaintiff's fall, to the effect that plaintiff was the third person who had fallen on the step that day, was competent to prove the fact that prior to plaintiff's fall defendant had notice of the dangerous condition of the step. Wainwright v. Westborough Country Club, 45 S.W.2d 86; Pulsifer v. City of Albany, 226 Mo. App. 529, 47 S.W.2d 233; Godsy v. Thompson, 179 S.W.2d 44; State ex rel. v. Shain, 101 S.W.2d 14; Henry v. First Natl. Bank of K.C., 115 S.W.2d 121; Fisher v. Pullman Co., 212 Mo. App. 280, 254 S.W. 114. (3) The argument to the jury was not prejudicial. Goyette v. St. Louis-S.F. Ry. Co., 37 S.W.2d 552; Jones v. Kansas City, 76 S.W.2d 340. (4) Instruction 1 was not broader than the evidence. (5) Instructions C, D and E were correctly refused because their substance was covered by defendant's given instructions 3 and 4.
Hulda Corley obtained a judgment of $3,000 for personal injuries sustained in a fall at the entrance of one of the stores of Kroger Grocery Baking Company, a corporation, and the defendant appealed. One of the Judges of the St. Louis Court of Appeals believing the cause should be remanded for a new trial dissented from [898] an opinion reversing the judgment and the cause was certified here for determination. See 189 S.W.2d 178, where the facts may be found in greater detail than herein set forth.
Mrs. Corley lived in an apartment building about four blocks from one of defendant's stores in St. Louis. On bad days she would shop in a small store in the apartment building, but had been making purchases at defendant's store two or three times a week for two or three months. The entrance to the store was described as six feet wide and three feet deep, flanked by show windows, and from seven to eight inches above the sidewalk level. This entrance, or vestibule, was of concrete with a metal strip at the sidewalk edge of about eighteen inches deep across its seven feet of width. The strip originally had grooves. Plaintiff testified she had had no occasion to and had not noticed this strip on any of her previous visits to the store. The family was having company on the evening of January 18, 1943, and, as plaintiff desired something better than usual for dinner, she proceeded to the "Kroger" store about 2:00 P.M. notwithstanding it was a cold day (18 degrees above zero) and had been snowing off and on up to 12:30 P.M., with the wind blowing flurries of snow. There was a film of snow on the sidewalks and on the step leading into defendant's store. When plaintiff arrived at the entrance to defendant's store and stepped upon the metal strip, her foot slipped and she sustained injuries when she fell. Her clothing brushed the film of snow off the step and then, as she started to get up, for the first time she noticed there was a spot in the middle of the iron strip where she had slipped which was "very smooth and slick," "worn as smooth as glass," "smooth looking, shiny," and slightly damp. On the issue of notice to defendant, plaintiff testified that when she went into the store defendant's manager told her upon being informed she had fallen: "You are the third person that fell there today."
No point is made respecting the pleadings. Plaintiff's recovery instruction predicated a finding of actionable negligence upon specific findings that the metal strip "was at the time worn, smooth, slick, slippery, dangerous, and not reasonably safe to step or walk upon, and that it was especially dangerous when wet and covered with snow" and a finding that the metal strip "was at the time wet and covered with snow, and that thereby the step was rendered especially dangerous for use by pedestrians" and that defendant, in the exercise of due care, could have but did not remedy the condition aforesaid or duly warn plaintiff.
The Judges of the Court of Appeals divided on the issues of a case made and plaintiff's contributory negligence as a matter of law. We think the majority of the Court of Appeals inadvertently overlooked testimony to the effect that the smoothness of the metal strip was hidden from view at the time by a film of snow.
The law is sufficiently stated in the opinions of the Court of Appeals and the cases infra. Plaintiff's theory of defendant's actionable negligence embraced the issue that the metal strip had become worn smooth in the middle by many persons stepping upon it; that when covered with a film of snow, this smoothness and the absence of grooves were concealed from view; that in the natural course of events defendant could reasonably anticipate the step would become moist and when moist would be slick, slippery and dangerous when such condition was hidden from the view, as by a film of snow, and that defendant had notice of all of this for a sufficient time to have corrected the situation or have warned plaintiff of the danger. The grooves were not worn off and the strip worn smooth in the middle in so short a time that, in the exercise of due care, it could not have been remedied or warnings of its condition given when the course of natural events required a warning in the absence of repair. Two persons had fallen on the step that day prior to plaintiff's fall. A finding that defendant had notice and a superior knowledge over plaintiff of the condition was within the evidence. Plaintiff's recovery is not restricted to the fact that there was snow on the metal strip. The snow blotted out the smoothness underneath. The snow was obvious but the smoothness underneath was hidden by the snow. It was the combination [899] of the snow and the smoothness of and moisture on the metal strip that occasioned plaintiff's injuries. A defendant is liable if his negligence legally concurs with the act of another in causing the injury. Harrison v. Kansas City El. L. Co., 195 Mo. 606, 622 (I), 93 S.W. 951, 956(1), and cases there cited; Gray v. Kurn, 345 Mo. 1027, 1043[5, 6], 137 S.W.2d 558, 566[9-12]. The causal connection between the smooth condition of the metal strip and plaintiff's fall was for the jury. Plaintiff had proceeded four blocks over the snow to the place of her fall. In answer to defendant's cross-examination she testified that there was a film of snow all the way from her apartment to defendant's store; that this film of snow did not make walking difficult, and that she had no trouble walking until she "hit this strip." The issue of actionable negligence was for the jury. Cameron v. Small (Mo.), 182 S.W.2d 565, 568[7]; State ex rel. v. Hughes, 346 Mo. 938, 144 S.W.2d 84, sustaining Bankhead v. First Nat. Bk. (Mo. App.), 137 S.W.2d 594; Glasgow v. St. Joseph, 353 Mo. 740, 746, 184 S.W.2d 412, 414; Lang v. J.C. Nichols Inv. Co., 227 Mo. App. 1123, 1134, 59 S.W.2d 63, 69; Hilliard v. Noe (Mo. App.), 198 S.W. 435; Studer v. St. Joseph (Mo. App.), 185 S.W. 1196, 1197[3-5]. Note what is said arguendo in Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 19(2), 231 S.W. 954, 956[3].
Nor was plaintiff's right to recover barred by negligence, if any, on her part as a matter of law. With the smoothness and moistness of the metal strip hidden by the snow, any danger arising from its smooth condition was not perfectly obvious to plaintiff, who was going to the store for the first time on a bad day. Had she had knowledge of this smoothness, its dangerous condition was not of such a nature as to necessarily cause one using it in entering defendant's store to be guilty of contributory negligence as a matter of law. See Butler v. University City (Mo. App.), 167 S.W.2d 442, 446[8, 9, 11]; Maus v. Springfield, 101 Mo. 613, 618(II), 14 S.W. 630, 631, 20 Am. St. Rep. 634; Young v. Waters-Pierce Oil Co., 185 Mo. 634, 666(II), 84 S.W. 929, 938(2).
There was no error in admitting plaintiff's testimony that defendant's store manager told her she was the third person to fall there that day, which was statedly admitted on the specific issue of notice on the part of defendant. State ex rel. S.S. Kresge Co. v. Shain, 340 Mo. 145, 152, 158, 101 S.W.2d 14, 17, 21, cited by defendant, recognizes the propriety of the testimony on the stated issue. Consult Moses v. Kansas City Pub. Serv. Co. (Mo. App.), 188 S.W.2d 538, 545[11]. Defendant's objection on the ground the evidence had been improperly admitted to plaintiff's counsel's reference to the evidence in argument calls for the same ruling.
The record fails to sustain the assertion in defendant's brief that counsel was permitted to argue, over objection, that defendant's manager had testified in a deposition "that this step was smooth, worn and slippery." Defendant's manager was present in court. His deposition was not read. He was not called to the stand. Our examination of the record discloses that defendant at the time was objecting to the statement defendant's manager would have testified that other women fell there that day, because "that is not true." This is not the issue in defendant's brief. The asserted error is not before us for determination. Bragg v. Metropolitan St. Ry. Co., 192 Mo. 331, 342, 91 S.W. 527, 530; Busch v. Louisville N.R. Co., 322 Mo. 469, 482(3), 17 S.W.2d 337, 341[12]; State v. Mosier (Mo.), 102 S.W. 620, 627[7]. Defendant's counsel in argument, stated he did not call the manager because he thought plaintiff did not make a case, and he did not want the manager to testify the step was worn and smooth, and: "We don't dispute anything she [plaintiff] says, not a word . . ." In view of these circumstances and of plaintiff's testimony concerning what the manager told her, the argument so far as reached by the objection interposed was not legally prejudicial. Consult 64 C.J. 269, Secs. 289, 290.
There is another attack against the argument of plaintiff's counsel but the record discloses the court fully sustained defendant's objection. Hence, there is no ruling upon which to base prejudicial error.
[900] Defendant asked a general and three specific burden of proof instructions. The court gave the general instruction but refused the three instructions covering separate charges of negligence. Defendant alleges error. The specific instructions need not be taken up individually. A sufficient reason applicable to their refusal was the giving of the general instruction on plaintiff having the burden of proving defendant's negligence, which instruction was in the usual form. The refused instructions, restricted to a specific charge of negligence, were within the broader terms of the given instruction. Consult Miller v. Williams (Mo.), 76 S.W.2d 355, 357[7]; De Moulin v. Roetheli, 354 Mo. 425, 189 S.W.2d 562, 567 [10]. Any repetition in instructions rests largely in the discretion of the trial court. Mendenhall v. Neyer, 347 Mo. 881, 889, 149 S.W.2d 366, 371[6].
On the ground that plaintiff's verdict-directing instruction was broader than the evidence defendant claims error alleging it "permitted the jury to find that the step was `slick, slippery, dangerous, and not reasonably safe to step or walk upon' when dry." We assume, without discussion or holding, that the step, as defendant asserts, was not dangerous when dry. Then, defendant's contention would be well taken if plaintiff had predicated a recovery on the stated ground; but the contention ignores other conditions upon which the instruction predicated a verdict for plaintiff. The instruction submitted several grounds of pleaded negligence, each sufficient in law when proved to uphold a recovery, in the conjunctive; for instance, the ground hereinbefore held to have been established by substantial evidence. This causes the instruction to fall within rulings to the effect that where plaintiff's verdict-directing instruction submits several charges of negligence in the conjunctive and there is substantial evidence establishing one or more but not all of said charges, the giving of the instruction is not reversible error. Potterfield v. Terminal Rd. Ass'n, 319 Mo. 619, 631, 5 S.W.2d 447, 452[6]; Guthrie v. St. Charles (Banc), 347 Mo. 1175, 1190[6], 152 S.W.2d 91, 98[12]; Lindquist v. Kansas City Pub. Serv. Co., 350 Mo. 905, 909[2], 169 S.W.2d 366, 368, citing cases; Adams v. Thompson (Mo. App.), 178 S.W.2d 779, 784[11, 12]. The technical ground for error that the instruction is broader than the pleadings or evidence yields to its nonprejudicial effect resulting from plaintiff assuming an unnecessary burden.
The judgment is affirmed. Westhues and Barrett, CC., concur.
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.