*1 such, place in conspicuous copy posted eases. A rules shall be every shop.” barber require- sanitation
Ordinance 6828 of Kansas makes inspection provides through the ments and for their enforcement between the shops Department. barber Health No conflict any. find has been out nor do we pointed statute and ordinance city may properly requirements supplement make sanitation may those the Board Health and their enforcement provide being shown, inspection. No conflict such ordinance must be held valid. court in holding Therefore,
The trial erred the ordinance void. judgment is reversed the cause remanded with directions to court dismissing plaintiff’s petition. trial to enter a new All concur. Grocery Corley Kroger Baking Corporation, Company,
Hulda Appellant. 39726. 193 897. No. Two, April 30, Division Wayne Ely for appellant. *3 respondent.
William Eohn for *4 Corley $3,000 BOHLING, obtained a C. Huida in of one of personal injuries for sustained a fall at the entrance Grocery and the Kroger Baking Company, corporation, stores of Judges appealed. One of the of the St. Louis Court a new trial believing the causé should be remanded for Appeals judgment and the opinion reversing an dissented from W. 2d here for determination. cause was certified See forth. may greater found in detail than herein set the facts be where Corley Mrs. in apartment building lived an about four blocks one of days shop defendant’s in stores St. Louis. On bad she would making a small store in apartment building, but had been purchases at or defendant’s store two or three times a week for two three months. The feet entrance to the store was described as six wide and three feet deep, windows, flanked show and from seven eight vestibule, inches entrance, above the sidewalk level. This was of concrete with strip edge a metal at the of about sidewalk éighteen deep inches orig- across strip its seven feet of width. The inally grooves. had Plaintiff testified she had had to and no occasion strip any not noticed this previous her visits to the store. family was having company January 18, 1943, evening on the and, plaintiff as desired something dinner, better than usual she p. proceeded “Kroger” notwithstanding to the store about 2:00 m. it day (18 was a cold degrees zero) snowing off above and had been p. up pf and on to 12:30 blowing with the snow. wind flurries m., There was a film leading of snow on step the sidewalks and on the into defendant’s plaintiff store. When arrived at the entrance defendant’s store and stepped upon the strip, slipped her foot metal and she injuries sustained clothing she fell. Her brushed film of show off step then, get up, as she started to for the first time she noticed there spot strip was a in the the iron middle of slipped where she had “very slick,” smooth and “worn as glass,” smooth as looking, shiny,” “smooth slightly damp. On the issue defendant, of notice to plaintiff testified that when she went into the store manager upon being told her informed she had fallen: “You are person today.” the third that fell there point
No respecting made pleadings. recovery Plaintiff’s predicated instruction finding negligence upon of actionable findings that the metal strip “was worn, smooth, slick, at the time slippery, dangerous, and not upon, safe to or walk it especially dangerous when wet and covered with snow” and a finding that the stfip metal “was at the time wet and snow, covered thereby with and that especially was rendered by pedestrians” for use and that defendant, the exer- care, cise of due remedy could have but did not the condition afore- duly plaintiff. said or warn Judges of the Court of Appeals divided on the issues of a
case made and contributory negligence as a matter of law. majority We think the inadvertently of the Court Appeals over- testimony looked to the effect that strip the smoothness of the metal was hidden from at view the time a film of snow. *5 sufficiently The law is stated in opinions the the Court of of Appeals and the cases theory Plaintiff’s of defendant’s ac infra.. negligence tionable embraced the strip issue that the had be metal it; by come in many worn smooth the middle persons upon stepping
9 and the ab snow, this smoothness a film of covered with that when natural view; that in the from concealed grooves of were sence anticipate the would defendant could course of events dangerous and slick, slippery be moist moist would and when become snow, by film of view, as a from the was hidden such condition to a time all of this for sufficient had that defendant notice danger. the plaintiff of have warned the situation or have corrected wojn in the smooth strip and the grooves not worn off were care, it could that, in the of due a time exercise middle so short given when the warnings of condition its not have been remedied repair. warning in the required events a absence of natural course day plaintiff’s fall. prior on that to persons had fallen the Two knowledge over superior and a finding A that defendant had notice recovery Plaintiff’s plaintiff of the condition was within evidence. strip. there on the metal the fact that was snow is not restricted to The snow was out the underneath. The snow blotted smoothness underneath, hidden the snow. It but was obvious the smoothness of and the snow and smoothness the combination was injuries. A that occasioned strip on the metal moisture concurs the act of negligence if his with legally liable Co., City Kansas El. L. causing injury. Harrison v. another 606, 951, 956(1), cited; there (I), 622 93 W. cases 195 Mo. S. Gray 558, 137 W. 2d Kurn, v. 345 Mo. S. 6], 1043[5, 566[9-12]. strip condition of the metal causal connection between the smooth jury. had proceeded fall was for the Plaintiff four blocks, her In place over to fall. answer to defendant’s the snow film all testified that there of snow cross-examination she was way store; her film of apartment from to this snow defendant’s walking difficult, walking had no did make and that she trouble strip.” negligence she “hit this The issue of actionable until v. W. jury. (Mo.), 182 S. 568[7]; for the Cameron Small Hughes, 84, sustaining W. ex rel. v. 346 Mo. 144 S. State (Mo. 594; App.), Glasgow v. First Nat. Bk. Bankhead 414; 184 Joseph, Lang 353 Mo. v. St. S. v. Co., App. 227 59 69; Nichols Inv. W. 2d J. C. S. 435; 198 App.), Joseph Hilliard v. Noe S. W. Studer v. St. (Mo. App.), arguendo 185 W. what 1197[3-5], Note is said Ry. Co., 11, 19(2), in Williams Kansas Term. plaintiff’s right by negligence, Nor was to recover if any, barred her as a matter of law. With the smoothness and moistness snow, any danger hidden strip arising the metal its perfectly plaintiff, condition was not obvious to smooth who was day. time going store for the first on a bad Had she knowledge smoothness, of this its condition not of such necessarily using entering nature as one it in cause
10 of law. See guilty contributory negligence store to be as a matter of 442, 9, University (Mo. Butler 2d City App.), v. 167 S. W. 446[8, 630, 631, 618(11), 14 W. Springfield, 613, Maus v. 101 S'. 11]; 634, 20 Rep. 634; Young Co., Am. 185 Mo. St. v. Waters-Pierce Oil 666(11),-84 929, 938(2). testimony that de admitting plaintiff’s
There no was error manager fall person fendant’s store told her she the third to was day, statedly there that of specific which admitted on the issue was notice on v. Kresge the of ex S. S. Co. defendant. State rel. Shain, 145, 17, 340 Mo. cited de 152, 158, 21, 101 S. W. fendant, recognizes issue. propriety testimony the on the stated of the Consult 188 W. App.), Moses v. Kansas Pub. Serv. Co. S. objection ground the evidence Defendant’s the had been to improperly admitted counsel’s reference to the in argument ruling. evidence calls for the same
The record fails brief to sustain the assertion in defendant’s that permitted argue, objection, counsel was to over that defendant’s manager smooth, in a deposition testified "“that this was slippery.” worn and His manager present Defendant’s was in court. deposition was read. not He not the ex was stand. Our called.to amination of the-record discloses defendant at the time ob was jecting to .the manager statement defendant’s would have testified ‘‘ ’’ that other women fell day, there that is because that not true. This not the issue in defendant’s brief. The error is asserted not before us Bragg Ry. determination. Metropolitan Co., v. St. 192 Mo. 527, 530; 91 S. W. Busch v. 322 Co., Louisville N. R. the 482(3), 620, 627 manager [7]. because he Defendant’s counsel W. thought 341 [12] plaintiff did ; in argument, State Mosier v. not make stated he (Mo.), did 102 W. case, not call S. he did testify not want manager worn and smooth, and: dispute anything “We don’t she says, not word [plaintiff] . . . In of view plaintiff’s testimony these circumstances and of concerning manager what argument told her,' the so far as reached objection interposed legally prejudicial. Con sult C. J. Secs.
There is against another attack the argument of counsel but the fully record discloses the court objection. sustained defendant’s Hence, ruling there is upon no prejudicial which to base error. general
Defendant asked a and three specific burden proof gave instructions. The general court instruction but refused the separate negli three instructions covering charges gence. alleges Defendant error. The need not be instructions up individually. taken A applicable sufficient reason their refusal giving was the general plaintiff having instruction on burden of proving negligence, instruction was the usual form. instructions, The refused a specific restricted to
1.1 struction. Consult charge 357 [10]. the trial [7] ; De Any negligence, court. Moulin repetition Mendenhall v. Miller Williams were within Roetheli, 354 Mo. in instructions v. Neyer, 347 Mo. the broader rests (Mo.), 425, 189 S. largely in terms of the 76 W. 889, 149 S. the discretion given in *7 verdict-directing instruction ground On the “per it alleging error claims broader than the evidence defendant dangerous, ‘slick, slippery, jury step was mitted the to find that the We dry.” as when upon’ walk not safe to or and asserts, step, as holding, that the sume, without discussion would Then, contention dry. when recovery on stated predicated a plaintiff be well if taken upon which ignores other conditions ground; but the contention sub plaintiff. instruction for predicated instruction verdict in law each pleaded negligence, sufficient grounds mitted several conjunctive; instance, recovery, in proved uphold a by substantial ground have been established held to hereinbefore rulings to the to fall within evidence. causes the instruction This verdict-directing submits instruction effect that where conjunctive there is negligence in the and sub charges several charges, not all of said establishing one or more but stantial evidence error. giving is not reversible Potterfield of the instruction Ass’n, Mo. 5 S. Terminal Rd. 452[6]; 152 S. W. (Banc), Guthrie v. St. Charles 1190[6], 909[2], 98 [12] ; Lindquist v. Kansas citing cases; Pub. Serv. Adams v. Co., 350 Thompson ground The technical App.), 178 S. W. 2d 784[11, 12]. pleadings than the or evi for error that the instruction is broader yields resulting plaintiff nonprejudicial dence to its effect unnecessary assuming an burden. Barrett, CC., is affirmed. concur. Westhues foregoing opinion Bohling, C.,
PER adopted CURIAM:—The opinion judges as the of the court. All the concur. Nyle Appellant, v. L. G. C. Weigel,
Ella Wood, Wood, Maud Agnes Wife, His and Emil Her Wood, Anderson, Anderson Safety Savings Husband, Defend Federal Assn., & Loan Agnes ants, Respondents. No. Anderson, Emil Anderson 39605. 194 W. 40. April One, Division