*1 Appellant, Aileen V. FREEMAN, COMPANY,
MYRON GREEN CAFETERIAS Respondent. Corporation,
No. 45788. Missouri,
Supreme Court of
En Banc.
Nov. *2 at
parently equidistant between the table which east sat and the table (which plaintiff estimated to distance three feet), question. was the clothes tree in picture While a of the lower of evidence, description was in contained in defendant’s answers to tiff’s interrogatories unsatisfactory and is we are uncertain to its That dimensions. * * * Clyde Linde, Robert B. Langworthy, answer was, was rack “The coat J. Billy Sparks, City, respond- S. Kansas for 5 ft. 11 high, weighed lbs., in. and Linde, ent. Langworthy, Matz & Kansas legs four support The the coat rack. City, of counsel. legs long, were in. in. were high, 1}4 9½ rack, 5 in. in depth at center of the coat Mandell, D. Popham, Arthur Sam Lee C. and depth were rounded at Seelig, City, appellant. Popham, Kansas for end of legs at Looking was in.” 1½ Thompson, Popham, Trusty, & Mandell picture, we note there are four City, Kansas of counsel. post are and fastened to a center place.on to start at a COIL, Commissioner. post about two or two and half one feet above the floor and which continue n below, Freeman, plaintiff Aileen fell and down post the center until near its bottom injured catching the toe result of outwardly where each extends leg of her of a shoe under the and downwardly in a curve until concave City. in Kansas defendant’s cafeteria leg end of each reaches and rests $30,000 damages Trial of her claim for knob or piece wood as we under- injuries in a defendant’s alleged resulted stand, thus, is high; one half and one inches appealed ensuing verdict. She the end of each leg elevated one one- and judgment the trial court erred and contends half inches above the floor. We under- also Defendant counters giving instruction 6. stand that each of the extends out from that, but the instruction was correct post the center and nine one-half inches. plaintiff failed make sub- negligence missible case as defendant’s Mrs. Freeman was seated in the south contributorily negligent and that' she chair on the east side of the table. She as a Inasmuch matter law. as we have arose, pushed table, chair under the reversibly decided that instruction 6 was facing turned to right so that she was erroneous, necessary that we first de- north, step took a toward the clothes termine the contention' the trial court therefrom, and, removed her a defendant’s have directed verdict. west, put turned started it on when caught toe of her right shoe under some- Plaintiff, time, at trial customer thing which caused her fall backward February in defendant’s cafeteria space to the between tables. food, proceeded balcony, She obtained lay She realized as floor and. table, tray placed on a looked at the clothes tree that nearby clothes tree. The coat on table at caught the toe of her shoe one under immediately one and the which she sat of the protruding legs. elevated identical, rectangular-shaped were the east on each with chairs side. tables two The Mrs. Freeman’s coat was the article against ap- tables were flush north ends those the clothes tree at time and she at parently only person the north with north wall. Also wall was the at either it, legs touching ap- two least tables described. Plaintiff ade- lighting to have realized the eyesight. good it; ignoring consequently, inlaid with under was covered quate. The floor applicable rules, squares neg- alternating defendant made linoleum *3 ligent. thereto- un- (Defendant argues, also as we tan. She brown and dark derstand, balcony. only theory possible that the defendant’s been on fore plaintiff which She any time. recover in this case move at could did not tree clothes tree is the clothes “aisle rule” under defendant had not seen says, liability imposed noted fall she for aisle conditions After her prior her fall. to mahogany though they which are treated as a dark are hidden tree was clothes upon patron’s one of defects latent because the at- its rested that one of had tention is squares. diverted from the aisle to other She linoleum the dark brown portions premises by proprietor’s that one. of the like a clothes tree never seen displays. Actually, ques- flat rested on the clothes tree in of those she had Most tion pa- in an aisle in the sense that bases. passed by trons going it in from one witness, doc- other than Plaintiff’s of the cafeteria to another. In operated a test- tors, who engineer was an cases, arewe of the that “aisle” laboratory. there were He testified that ing generally applicable, while do announce provide customary use to methods any separate applicable rule or doctrine to public places in clothing in hanging of distinguished pro- aisle cases as from other no or other way a that there were such prietor-invitee cases. agree And we do not trip. patrons could which protrusions over premise with defendant’s this is unless case, an “aisle” defendant not have than no evidence other adduced Defendant negligent.) been medical. think defendant has to Defendant, operator as of a recognize duty, the difference between one’s duty restaurant, had the to exercise ordi law, aas matter of see and observe an his restaurant and its nary care to maintain object duty as such and one’s observe condition for safe facilities object, detail the construction of that patrons exercising care. use consequences recognize disregard would not be lia Consequently, defendant manner of that ing the construction. So injury resulted an ble plaintiff it is in the 'instant case that which, together with the condition obvious duty, law, as a matter of see it, consequences disregarding was or position cafeteria, clothes tree and in the been as well known to her as to apparent and it she did ob see and and, (and condition defendant sufficiently clothes serve the tree to have disregarding it) upon her coat and to have removed to cause the caused or contributed Thus, it, her from it. as we see must have been was one of debatable is not whether she saw faculties, her if she used conscious must have seen the clothes an as Douglas Douglas, recover. cannot object recognized and must have it as a [2-5]; Summa v. Mor commonplace object occupying a certain 350 Mo. Real Estate 165 S.W. gan floor, position whether, on the but [1,2] 2d [3]. care, plaintiff was, exercise of law, required, contention that is defendant’s It matter of under a all the cir evidence, tree was an coat rack in clothes cumstances to also have ob placed against which had been general use that the clothes was so served construct conspicuous well-lighted place; a wall which each ed that extended faculties, post plaintiff, if she had the center used nine out and one- upon observed its inches and each of which was bound half considering whether we have been elevated While leg was each so that block wood as to defend- there was submissible case inches above one and one-half neces- negligence, what imperatively ant’s said ordinary care also and whether sarily charge relieve recognized tends plaintiff must negligent contributorily must that she was meant that however, Defendant, to matter seizes enough of law. getting close take care to avoid plaintiff, her shoe in de- toe of statement made catch the leg scribing protruding what she did when she arose under an elevated coat, the table and coat. started obtain away having removed turned after convicting contributory negligence. *4 that agree with defendant We pushed Plaintiff testified that after she had commonplace generally trees are clothes her chair under the for- table nowas widespread There articles in use. ward glance to obtain her coat and did not however, adduced, that clothes evidence just look walking. where she was She are one was as the instant trees constructed rack, over “it was there think it customarily And while we used. my hand.” trees which knowledge that clothes common Defendant give testimony seeks to that use, are general we rest floor are preclusive meaning that did knowl prepared say it not to that is common thus, not look going where she was particular any edge that clothes trees suppose, did even see clothes customarily used restau are Defendant, tree. contending, so has sub evidence on the direct rants. plaintiff’s isolated one statement testimony witness plaintiff’s ject was the testimony as given a whole and has to that Poisner, be “unusual” who said it would a meaning statement' which is not com- out so some legs of a clothes “stuck pelled testimony when her whole is con- in trip If defendant over them.” favorably plaintiff’s sidered most stated to invoke rule sometimes tended standpoint. plaintiff’s Considering all of “upon sufficiency of rely it could testimony, jury reasonably could have use, in common a contrivance that plaintiff found meant (by the state- use, experience gained in common light of glance ment did look)’ purpose for answer the has been found to she did not at that time observe in detail intended,” pro designed which was the area traversed step the one inherently its construction was vided took, but, on contrary, that she made Kuhlmann, Mo.App., dangerous, v. Walser a normal automatic movement toward the 658, [4, say, 5], suffice clothes tree where she knew she had might of the rule as discussion without theretofore her coat. case, apply to the there instant otherwise support theory. such a was no evidence to plaintiff, is clear in the ex Co., City Ry. v. Kansas Terminal See Baker It care, had to have been Mo., 250 S.W.2d and location of conscious view, jury question tree, In our it was a but we do not clothes wish to law, defendant exercised say, as to whether as a matter care patrons providing closely required care in have so ob one, i.e., as was instant tree as the clothes constructed served have deter that, say whether defendant rea the fact mined have been anticipated cus sonably should conscious disre exercising garding the use the fact the clothes tree was tomers likely elevated legs pro to sus constructed of that clothes so outwardly result as a of'its construc toward or into some truded tain area 'one' stand removing in which tion. Bowl, Mo. one of you so Ozark of the hall clothing from Miles v. it. App., 250 S.W.2d [2] [3]. find, and if you further find that look, so, directly contributed different is that Our conclusion fall, cause regardless her to then different draw might minds fact, your other issues of verdict undisputed facts conclusions Myron be for defendant Green questions and, thus, the instant case Cafeterias Company against the plaintiff’s negligence of defendant’s and tiff, Aileeen Freeman.” V. jury. Louis were for the Fortner St. apparent It is from what we have said Public Service heretofore for the 13 [1-3]. negligence was whether this Defendant has cited cases exercise of support jurisdictions in of its and other closely observe as to discover and negligence. contentions as to appreciate that the clothes tree was so are examined all while all of them and constructed that pro- point they *5 in the sense that involve fact truded and which blocks one application the situations call for and one-half high inches and unless legal principles applicable the she close, get careful not to too the proprietor-invitee relationship, none is toe likely of her shoe was to catch under factually sufficiently like instant case the the legs. elevated It seems to us controlling precedent. to be a And our jury that a any would not understand that search has in a case disclose by submitted instruc- volving an from an in resulting tion 6. provided by vitee’s use of clothes tree The first clause of the instruction ab- proprietor for his customers’ Gen use. stractly plaintiff’s that duty it states erally supporting our conclusions are: ordinary exercise care for her own Sears, Co., Haverkost v. Roebuck & Mo. safety. Inasmuch as that clause is not App., 7]; 193 [6, 362 [5] any way tied in with the rest of the Morgan supra, Summa v. Real Estate instruction, may ignored in the fur- Bowl, 165 [4]; S.W.2d 393 Miles v. Ozark ther consideration of the instruction. supra; Small, Mo., Cameron v. 182 S.W. Eliminating the first clause and the latter ; 2d Stafford Fred Wolf [10-12] hypothesizes proximate cause, erman, Inc., 473-475. findings required by the jury the were Instruction 6 was: “The Court instructs these: duty jury plaintiff the that was the you plaintiff 1. If find knew or in Aileen V. Freeman to use the exercise of care should have safety, you for her own and if find that known that the hall tree rested on the knew, Aileen Freeman V. or in the ex- floor, and care should have known you If plaintiff 2. find that if floor, hall that the tree rested on had if and looked at the floor and hall you if she had tree she find that looked at could have seen that and the hall mentioned in the hall tree evidence floor, legs resting on and have seen that hall she could tree had resting you legs and if find you plaintiff If find that did not plaintiff glance did not that and look where look where she she removed stepped as she removed her she coat from her coat from the hall tree and was there- tree, so, you if if the hall find that by proximately negligent. thereby plaintiff negligent, and if you required finding reason find numbered above look, so, any caught to do with real if she foot under has little issue in the find- instruction, the clause called no effect but, case complete ing 3 above was within itself finding that required a
other than to have first proper submission. For ordinary care plaintiff in the exercise plaintiff negligently would tree rested hall should have known stepped as she failed to look where opposed, manner —as on the floor in some ‘ removed her coat from the clothes understand, hanging from failed' so look she if because she fact about ceiling. The noticeable wall or caught foot under one finding numbered the unessential to fall clothes tree which caused her cor- only required finding which it is the contributory injured, plaintiff’s to be have duty rectly refers to properly negligence was submitted. On known ordinary care to exercised examination, however, fallacy further seen, etc. this, appears. It is such a submission required that 2 above Finding numbered properly could not plaintiff had looked jury find “thereby proxi- found that the hall tree she..could at the floor and e., mately negligent,” by having failed i. resting on hall seen that removed look where did instruction the floor. Note her coat hall unless the require finding the effect that priorly found at the floor and plaintiff had looked the exercise of care should have have, ex- hall tree she so looked observed the manner as to have have, ercise of in which tree were the hall the hall tree’s in which the manner they *6 constructed and in the manner 2 clause is As upon rested floor. the on rested so to have the finding written, require serves recognized danger the to her she failed plain- possible physically was words, presence. to heed their In other the hall by looking to have seen tiff whether negligent was in not look- upon they rested legs and that tree had ing where she as to avoid the so Certainly not tanta- the floor. effect of the manner in which the of of finding exercise mount clothes tree were constructed required plaintiff ordinary care depended time she removed her coat closely and to have observed looked whether of the exercise care re- manner in enough to have known quired plaintiff of to have known fact rather than the the hall necessity avoiding of floor. The tree’s protruding legs effect of the of the clothes seen plaintiff could have look- fact that Small, As said tree. in Cameron v. “* * * ing resting that the hall tree had supra, plain- 182 570: S.W.2d essentially important. Es- not recovery tiff not from should be barred stated, was, sentially important whether for failure to exercise care of care plaintiff in exercise if, by observing, of the exercise of saw or should have seen observing, she could [or should] constructed, so etc. hall tree were ^he seen an unsafe condition which * * injury; (Bracket- her caused say ours.) plain- is insert That ed Finding numbered above recovery tiff “should not be barred plaintiff did not look to find that &e to exercise for failure care in stepped as she where she removed unless, by observing,” the exercise or- hall and that coat from the dinary observing, she could proximate negligence. look was an unsafe ir condition At blush it would first injury. parts which caused respective deficiencies in other stated, 176, Mo. 496, [2], think, reasons for the applicable. viz., plain- hypothesized, act of omission where looked tiff’s failure to have removed HYDE, Judge. act omis- not the the clothes I respectfully I because do dissent sion which the believe No. 6 we should Instruction hold negligence proximate found constituted reversibly If the trial erroneous. this case. are further And we court granted new trial on the
opinion not understand juror that a ground that clear this instruction was not that to convict the instruction or misleading, I affirm such an. tiff re- contributory negligence he However, order. not think in- I do this quired ex- to find that misdirection, merely struction is a safety oivn ordinary care ambiguous principle falls within the de- failing to look as to observe the Conrad, stated in Hooper 364 Mo. tails 496, 501, “that if either thereby danger recognize tree and parties hypothesized fact deems herself ignored or clearly situation not been to have that construction. sufficiently any instruction, hypothesized in judgment The and the case is reversed he should clarifying amplifying offer a remanded for a trial. new instruction.” PER CURIAM. by COIL, C., foregoing opinion
adopted the court en
Banc. WESTHUES, DALTON, LEEDY and *7 Missouri, Respondent, STATE of
JJ., concur. v. 8-6, OIL, LOCAL NO. CHEMICAL AND HOLLINGSWORTH, J.,C. concurs in ATOMIC WORKERS INTERNATIONAL opinion filed. UNION, AFL-CIO, al., Appellants. et
No. 45869. HYDE, J., separate opinion dissents Supreme Missouri, Court filed. En Banc. Sept. 1958. STORCKMAN, JJ., EAGER and dissent. Rehearing Nov. Denied HOLLINGSWORTH, Chief Judge.
I concur amI because convinced and I COIL, C.,
understand the
hold that Instruction constituted clear
misdirection in that failed to submit Consequently, issue. I decisive fur-
ther rule believe that with .the reference
to clarifying instructions, amplifying Hooper Conrad, announced in