103 Mo. App. 77 | Mo. Ct. App. | 1903
(after stating the facts as above). — At the time of the injuries complained of defendants conducted a hardware store at No. 305 North Twelfth street in the city of St. Louis. The storeroom was about sixty feet long and twenty feet wide.' Near the rear a stairway led to a cellar beneath the floor. This stairway was entered through a trapdoor in the floor which was, of course, an opening that a person might fall into if the door was left open. About nine o’clock in the morning of November 14, 1901, the plaintiff, Mrs. Kean, entered the store on business. She inquired for a coffee pot like a sample she saw in a window, and one of the defendants invited her to the rear of the room to look at some pots which were on the shelves. This defendant, William Schoening, preceded the plaintiff to the back of the room and she followed close behind. At that time the cellar door was shut and did not attract plaintiff’s attention, she says. She and William Schoening stopped near the trapdoor and he proceeded to name the prices of articles which were on the shelves. Her eyes were directed to those wares, and while she stood in that position Edward Schoening came from the front of the store, raised the cellar door and descended to the cellar, leaving the door open. The result was that the plaintiff took a step or two backward, fell into the hole and was injured. She testified no warning was given that the door was open and that she knew'nothing of its being open until
The jury must have believed the plaintiff’s version of the occurrence, as the instructions given to them did not warrant a verdict in her favor unless they did.
One point made by the defendants is that the court erred in telling the jury that an occupant of a business house, who invites the public to enter it to 'trade with him, is bound to keep the premises in a reasonably safe condition. That instruction is sáid to wrongly declare’ that the occupant of a store must keep it in a reasonably safe condition; whereas he is only bound to use ordinary care to keep it reasonably safe. This contention is of trifling moment in the present action; because it can not be held that the premises were reasonably safe with the cellar door yawning in the middle of the aisle where customers walked, or that the defendants used ordinary care, or any care, to keep them safe if they left the door open. The only defense possible was that ■plaintiff knew, or had good reason to know the door was open' and, without using proper care for her own safety, stepped into the hole. In other words, the only defense is contributory negligence on the part of the plaintiff. The instruction criticised stated with much particularity the specific facts the jury must find in order to return a verdict for the plaintiff. When read together the instructions put the issues fully and fairly before the minds of the jury. The first one given for the plaintiff is further criticised on the score that it. authorized a recovery without regard to the plea of contributory negligence on her part. This criticism is unmerited; for the instruction required the jury to find she fell when she was using ordinary care for her own. safety.
Judgment affirmed.