*1 1922. Main v. Lehman. that think we months after the sixteen knowledge general reference
the evidence as well as justifies such condi- conclusion that to such matters indicate natural, time and did were, tions recovery. delay in unusual practice this the well-established deference to permitted judgment ought stand
court the not to greater [Kibble v. Railroad a amount than $10,000. Railroad, Mo. 46; l. Newcomb S. W. c. Kin l. l. c. 249 Mo. c. Railroad, Farrar ney Brady Railway, Railroad, Applegate Railroad, 173.] plaintiff will, if the within therefore
We hold days thirty in trial court a re- this enter date, judgment mittitur as said of the date $10,000 judgment and costs $10,000 for the sum of court, hereby against D. Hines will Walter affirmed, be and is as Railroads, alone; otherwise, Director as General pro- for further will be reversed and is and remanded opin- ceedings trial in accordance with said Paragraph result as to ion. concurs Small, C., paragraphs; Ragland, G., concurs all other One, and only. Paragraph result concurs One as to the opinion foregoing by BeowN, PER CURIAM: The opinion adopted Woodson, as the court. is C., JJ., P. J., Blair, Graves, Elder, T. concurs; James concur result. Appel- LEHMAN, H.
ISABELLA MAIN v. MAURICE lant. One, 1922.
Division June Invitee: of Toilet. the toilet de- NEGLIGENCE: Use Where hy as used his customers well was allowed he fendant’s store employee customer, employees, plaintiff, an aslced third floor it was on the toilet was was told the customers’ MISSOURI, SUPREME COURT OP it, licensee, and how reach was not mere in- vitee, being such defendant was bound to exercise reason- keep able care to in a safe condition for her *2 use. 2. -: -: -: Failure to Exercise Reasonable Care. The step high mere fact that there was in the toilet six which entering the invitee would have ascend when and to descend leaving when was not in itself of a lack of due care on evidence part store-keeper, steps of the because such are usual dwellings and stores. Neither can be said that in- light invitee, by sufficient in the toilet to enable the the use of care, ordinary falling step, to avoid over the her evidence adjoining shows that when the door was closed the from the window, open top shown over the of the toilet and came down in it sufficiently upper part door, to enable her to see the of the easily push the toilet seat was so close to the door that she could ajar moving seat, with her hand without from the and that only previously when she entered the toilet a minute and she .half distinctly platform had seen the which she knew she leaving being have would to descend on the toilet. And such facts, although she miscalculated the distance and fell from six- leaving injured, inch the toilet and was the defendant did required not fail to exercise the reasonable care for an invitee
the law. . Danger. keeper -: Care Invitee: Due Known 3. of a store keep owes to invitees to exercise reasonable care to premises in a safe condition for their use in the trans- they engaged action of the business are in- vitation, dangers warn or to them of known to him known and not knowledge dangers full them. But where the invitee has of the injury, they immediately before her are as Well known tc dangerous ordinary defendant, and are not of themselves if as to exercised, damages. she cannot recover care is Appeal Circuit Court.—Hon. Lawrence from Buchanan Judge.
A. Vories, Reversed. appellant. Pike for
O. G. Mosman and Vinton anticipated person would reasonable No knowing anyone observing the situation ac- ordinary meet using care, did, 581 1922. leaving Gold- entering toilet. Shaw v. cident in Ency. Eng. 471; Law, 21 Am. & 332-8; 116 Mo. man, Brewing Assn. v. 122; Patton, v. O’Donnell 98; Lonis, 674; St. 141 iMo. Benton v. Talbot; Berkson, v. 463; White Ellison, ex rel. State v. Parker 216; Iron Mass. Co., v. 670; 187 Pac. Carleton Y. 159 N. Kessner, 179; Hordes v. v. Pnb. 69 Me. Shepherd, Douglass Mass. Larken Snpp. ; Jennings Tompkins, 180 N. Y. O’Neill, Spanos, Pac. Greenfield Mass. Corbett (Wis.) saw 180 N. When W. Miller, arrangement toilet she saw and condition after be less that there would knew pulled knew she “would to after her. She she she she saw when have to down” By stepped. pushing op¿n entered and *3 returned and showed her have would Ordinary required step. this; she care but if to step where taken she should have darkness would down step. Parker v. Pub. 69 Co., care to find Hogan 213; v. Rail- Railroad, v. 179; Me. Clark 313; way, Mo. Railroad, Zumwalt 175 55;Mo. v. 150 Neg. Brewing 556; Mo. on Assn., 176 Doerr Wharton v. (2 Company, Ed.) 41 E. 218; Jones 833; Sesler v. S. see. Y_. contrary, Supp. Sugar N. 57. On con- 14 Co.,
v. tradicting thought step far- she senses, her own assumption. carelessly took ther out and create a .mis- did not situation calculated to Defendant anyone provided to sufficient enable He lead her. location. this. She admits to see the she also that had mind she admits She would says left she she toliet, down as pulled shut had and darkened because she see, great place. was not But the darkness either so seeing prevent great if her from she or had looked, require stepping enough her to care in instead, use thought upon acting that the where appear ‘‘ It or it was not. to be seem further knew 582 OF MISSOURI, SUPREME COURT thought out;” she it was further 165; Hacker v. Rail- out. App. way, 99 Mo. Fowler Mo. Randall, 110 v. Piper Brugher v. 153; Y. Buchtenkirch, 167 N. 414; Railway, v. Railway, 192 S. 224; N. Y. Sanderson v. Redley Murphey 54; v. Nat. Mass. 869; Cohen, W. v. Hayden, Supp. Co., Moehiea v. 444; Casket 161 N. Y. Supp. Supp. 122 N. Y. N. Brudie v. 233; Renault, 157 Y. Berkey, Speck Railway, Bedell 497; 122 N. W. v. v. Massey 397; Patterson Seller, 43 N. Pac. W. Hemenway, Badger Gresham, S. 148 Mass. The has relies, E. 677. rule quoted applied State, of this been often the courts expressed Mass. is thus Carleton v. Iron & Steel Defendant Patton, 0'’Donnell 19. had Mo. anticipate plaintiff no reason to not a prudent injury person, care take to avoid injured rel. Elli- no one before. '.State ex premises well known The were as son, 271 required. as to No notice was defendant. Mytton respondent. & Parkinson for occupant premises (1) invites the owner or When persons own bene- in connection his use the same person longer pleasure is no or then that convenience, fit, duty invitee, licensee, bare but becomes ordinary prevent at once to take care to an action lies. and for the breach raised, may implied may dedication, invitation any customary state use, arise from or from known *4 naturally arises. facts App. Schoening, V. Kean 77; Simons, v. Mo. Jacobson (Mass.) 221 Mo. 490; Rothschild, 104 N. E. Glascer v. App. 130; 180; McCullen Bros. 198 Mo. Co., v. Pishell Railroad, v. Applegate 13; ’Donnell v. Mo. Patton, O App. 500; Hollis 173; Korte, 77 Mo. Moore Oakley Richards, 508; Merchants’ 205 Mo. Assn., Reynolds Co., 275 Mo. v. John Chemical Brod maintaining App. Every person (2) Ill. reasonable 157. 1922. '00 (cid:127).co -i- Main Lehman. anticipated construct- that a toilet would
a toilet have extending platform out the door not with the ed and with closed, the toilet room when of of the extending or four inches three within two, com- construction that dark; be such floor would persons likely render would bined with darkness leaving A close injured room. the toilet in would be entering not first time would the toilet for the observer out platform comprehended extend that the not have and would closed, line of the when to the door entering with the door on closet observed floor, or four of two, it extended to within three platform closet, within below elevation anticipated have observed and could and would not room when within extent of the darkness observing that there closed; and even would comprehend platform within the closet, leaving danger rea- the closet, be encountered Hanley darkness. v. But- construction, son Supp. Oakley App. Y. Y. N. 329, N. ler, 167 Scraper Sidney Aiken v. Steel Richards, Snellenburg, Pa. Bloomer v. Badger 235. Co., 166 Inv. Wis. 25; Hommell v. State injuries personal fall- from SMALL, C. Suit ing store who in defendant’s over shopping therein. hurt November herself testified:
Plaintiff Was goods to-buy a. m. Asked about nine store Went toilet was. saleslady floor where customers’ on second get there; went me told how floor, said third She up north- in room extreme Toilet was elevator. partitioned off; Toilet floor. window corner of third -west Toilet, entered outside toilet. end room west immediately west to the next north this.window higher platform, six inches or stool was on wall. Seat how far floor. Cannot tell than by plaintiff’s Question feet. think about two door, *5 MISSOURI, OF COURT SUPREME
Main v. Lehman. possibly foot rule “If this a he counsel: toilet Yes, A. sir.” door about a foot? top but below the floor, not reach the went did platform three inches. When toilet door platform ex- closed could not tell how far out light in toilet. tended. There was When artificial thought step I went in I there; I noticed it came out far as the door. I went to leave as As toilet I stepped my step go went out I and as I set foot to out my put my I fell all force hand. on this I foot and step step out, down. The closet door was out, up, just just stepped put my I rose closed. and out hand stepped stepped as I I and as fell I forward onto the my weight stepped all floor and threw hand. on this I off thought step, stepped from the I it farther out, extended I stepped, over and me down. threw looked I as I thought platform dark I was so could tell. I went far as my the door. It so dark at I feet could not tell. Cross-examination: Had never been in this toilet before. The window is close to the be- toilet swings against back the window and cause. quite sup- covers the window. No, not cover all, I pose. Think lacked about two feet extend- ing any light to the door; could see on the floor very stepped the door. It was dark. went As I to leave I put my and out at the hand same time. Door was not. string fastened; it had a to it. I held the door shut holding go string. string onto the When I let push open swing started to door. Door did not go string. just own motion when let go I I let pushed stepped step same time. I noticed there as I went closed the door. Door was not closed I when came into As I came in I could room. step. see In toilet about a minute half. Did looking not stand there down to how far ex- got ready simply tended. When I to leave I took this pushed at the same time. sawI opened the outline was before I the door, I out, tell far it but it supposed bow went was so I dark *6 My neighbor, Mrs. it as far tbe door. went her me. went to was in the next toilet to She Means, beyond City Sunday. been last We had mother’s Kansas partition be- together. shopping There was a board was about two tween me and Mrs. Means. Window sill higher top of tell how feet above the floor. Cannot much light top above. As than I window was of door. noticed I above I see, saw the door. could was stood I something or-gray light. it like me and was Had drab say. paint positively string on not I saw it, on my feet on in. As I sat on rested door as I went space toilet eighteen platform. inches on of about Could exactly. door. I looked tell not “Q. under I could see the sitting while You did that saw darkness. up against it and it there? A. The door was close you tell.” You the there. dark can see so couldn’t see the and I started I could While plainly door was forget simply enough. all about this I didn’t thought out. it farther when I came I extended I knew take down, out. I I would have to one but thought than it it farther was. was out plaintiff: Used
Miss Lilliam Thomas for testified times. number The toilet toilet as customer platform, edge the the a foot from higher on than the floor. The about six stool platform it the and from to about two inches from floor about a foot. Door on west nearly sags floor on east. side and Can’t see platform sitting (referring on floor in front of stool high.. morning). Door seven about 9:30 feet Par- above Window sill tition below window. feet ceiling reaches room three feet floor; window above partition. only Door not little door and fastened — string. right in room on third floor Toilet located next opened alley; two-story building to window which alley; no shades on window. afternoon’ across In the being it then in the west, in there, sun came SUPREME OF MISSOURI, COURT n naturally light through, win- make tlie come room dow whole down that closet make the brighter. morning sun does strike you west can window, the door, you into the does extend back can room— you open you see the on the floor. After step, everything plainly, can see the stool, top trouble at all. No toilet. over the employee, Inez Osborn, former testified testimony corroborated Thomas’s as to Miss light, location, dimensions, etc., of measurements, surroundings. toilet and its plaintiff’s
T. A. Main, seen and examined son, had question the toilet in and described and the surround- *7 ings substantially except Thomas Miss and his mother, up that he that the said door had been raised several the last time he it saw and he described the window large as a window, whereas Thomas an Miss said it was ordinary-size window. He there after- also noon right that said then the shines sun into the through toilet the window.
The to consisted of broken dis- right located disfigured bones left hand, which and much weakened. part
On the of the defendant a number of witnesses to testified abundantly effect light- toilet by day, ed they the window at all times of and that newspapers see to read sitting at nine a. m. on seat step- with the shut, and that the plainly off also then were visible. That the door was eight about six to inches above other the floor. The substantially measurements by plaintiff’s were as stated witnesses.
As use toilet customers defendant’s evi- dence was as follows:
Miss employees, Thomas, one of said defendant’s on cross-examination: “Q. This is the toilet cus- tomers use? A. sir. Yes, Q. for Provided them? A. cus- direct the You Q. the one use. Yes, that we them; direct never it; A. use I never No, tomers? happen never in; them come seen strangers just that work the ones when there would be — provided for only one That is Q. the house. don’t only there. I is the one customers? A. It they not.” customers or whether know allow subject on M. H. Lehman testified Defendant lady ladies’ Is that “Q. cross-examination: toilet— employees. Q. A. intended for customers? It is tell they couldn’t A. I And you, it? customers when need lady ask to me would come for reason, only you one It is the Q. the toilet. be directed to your provide A. For customers? our customers? they they send could; If I don’t Q. Yes? A. use They go to ladies there them Q. there. ex- know to what
store? A. Yes. You Q. they tent A. sir.” No, otherwise? used photograph
Defendant introduced in evidence also showing the taken 3:30 in afternoon two toilets they as defendant’s evidence tended to existed show plaintiff’s injury. perfectly room time of It shows apparently above and door about six inches floor. gave plain- certain instructions for the
tiff defendant, also for refused instruc- tion in the nature a demurrer of» evidence asked *8 plain- jury the defendant. The a verdict returned lodged for appeal tiff for $2,500. Defendant Kan- his in the City Appeals, sas Court but that court affirmed the judgment below because the ex- bill of found ceptions by appear shown as the abstract be signed Judge by judge. re- dissented and Trimble quested that the this cause certified to which court, May was done, ordered 23, 1921.
April appellant City 13, Kansas .filed Appeals duly transcript Court showing a certified that part concluding original exceptions was bill as follows: MISSOURI, OP SUPREME COURT exceptions, having his
“And bill of written out this, signed prays may defendant same be allowed, among is the records in the cause, enrolled day accordingly done this 8th of November.
“L. A. VORIES, “Judge of the Circuit Court County, Buchanan Division 2.” question court no further is raised toas signing exceptions. of the bill of plaintiff point
I.
The first
whether
an
was
or
invitee
a mere licensee. The evidence
was
shows she
a customer at
store,
defendant’s
and that the
question
to be used
defendant’s
allowed
customers
employees.
as
as
She was therefore
invitee'"”' invitee,
the defendant
such
was bound
as
keep
to exercise reasonable care to
the toilet in a reason
ably
simply
for use,
safe
and not
refrain
condition
recklessly
wilfully
permitting plaintiff
go
danger
premises,
the case of a mere licensee.
v. Schoening,
221 Mo.
[Glaser Rothschild,
Kean
Oakley
App. 77;
v. Richards,
tiff Defendant’s to reasonable care to exercise furnish care.°naMe safe toilet. The mere fact high plain- in the toilet six tiff would have to ascend and descend was not in itself a want of care on part, evidence of due defendant’s be- steps dwellings such are usual cause and store build- ings. [Oakley v. quot- Richards, 276, hereafter But it is said there insufficient ed.] day permitted time of at the to use it to falling step, enable her see and over the avoid *9 Vol. Lehman.
Main v. such, ordinary tended circumstances care, use of and part the negligence under all on defendant’s to show agree to this statement. in We cannot facts this case. closed door that when the evidence shows Plaintiff’s adjoining shone over the window from the the sufficiently top open down into toilet came it the and part upper plaintiff door, the the to see enable the the seat so close to the door—within toilet and ajar push easily door she could the two feet of it—that moving platform, from the seat or her hand, without win- from the admit abundant unshaded and thus adjoining her immediately to enable the door, dow, step plainly of her —if floor and front the see see that she could not so dark when the door was closed half. but a minute them. and She was p.ist open through the seen door, and had She had entered says distinctly knew and which she she leaving But, toilet. she have descend would open pushing first so she instead stepped time she forward the dark the same better, opened because she miscalculated door, fell, she although she had door, the distance just previously. a half This a minute and seen Suppose at the of the defendant. defend- the fault time employee, question her in answer to as where the ant’s only had not told her that located, toilet was step floor, had informed her of third and descend, toilet which she would ascend would performed not the defendant have whole law? think reached the toilet We so. When admits door, with the she she saw with own eyes step which she knew plain- gave Defendant ascend and descend. have to thus ample had, notice of tiff, just situation a moment before location and the whole injury. 'respondent: As to authorities cited shavings pile Patton, O’Donnell SUPREME COURT OP MISSOURI, Main Lehman. *10 premises upon
sawdust on the defendant’s fell in- jured plaintiff. The court there laid down the rule as follows: invitees, premises occupancy
“II. The in the and under place control of were defendant used him as a for plaintiff transaction of his business, and entered thereon implied, as a express, customer if invita- plaintiff tion to do so. Under these circumstances, owed duty to defendant the of the exercise of reasonable care keep premises reasonably in a condition for safe of in the use transaction of the business engaged which he was under such invitation, or to warn dangers plaintiff. him known to Mm and unknown to of ‘‘ duty liability proprietor The of business premises to his customers such cases are stated G-kay Justice in a case Massachusetts as follows: ‘The occupant damages owner land or of is liable to those coming using due it, care, at in- his invitation or express implied,- any or ducement, business to permitted by transacted with or for an him, oc- by the unsafe condition casioned of land or of access to it, which is known to him to them, aAid negligently given which he has to exist and has suffered them [Carleton no notice v. Iron & Steel 99 of.’ Mass. 216; see also Welch v. 15 McAllister, Mo. for a review of the authorities; Beach on Contri- Negligence,
butory (Italics ours.) sec. 51.]” Oakley 275 Richards, Mo. 267, had previous knowledge of and was unable see it on account of darkness. In that case the court says, page 276: appellants ordinary
“I. It was the of to use place they care to see that to which invited their patrons purposes safe for for use was n designed. [Hollis Assn., v. Merchants’ jury finding’ l. 520.] c. warranted respondent’s inability fall was due to her to see the. step-off on account of the darkness theater. ‘It Vol. v. Lehman.
Main knowledge’ de that a is a matter pression common four-inch who, fall’ one to to cause ‘is in floor sufficient presence, knowledge the absence [New Theater steps of it. Co. contended the It l. c. 86.] Md. Hartlove, negligence. presence step-off, It was alone, ivas respondent enable sufficient to the absence brought depression evi her fall. The negligence. finding of dence was sufficient to warrant App. 71; New Theater 53 Ind. [Valentine Sloan, Co. v. supra; Andre Md., Mertens, Co. v. Hartlove, 123 Little N. L. Mass. Cook, Marwedel v. J. Holyoke, Butler, Faxon Mass. 177 Mass. *11 Reynolds, Nephler 211 Mass. v. v. Wood Marston Camp 76 N. Y. Currier Wood, ward, v. Appellants rely 135 414.] Music Mass. Hall, steps stairways holding ordinary con and cases of when used as means struction are overcoming safe of They the do not in level. decide differences Holyoke, question [Little Mass. 116.] case. this In is cited. Co., 1033, Peck 195 W. v. Yale Amusement S. in show what that case evidence failed caused stairway, jury. with the the" Mrs. Peck was familiar and usually moving-picture found like attempting properly theaters. In to use constructed previous presence stairway she which had knowledge, her fell, she evidence and ‘no from ” (Italics say just ours.) cause ivhat did her fall.’ plaintiff Rothschild, 221 Mo. 180, Glaser knowledge pit previous no and could had recognized by previously and had been fell, which she dangerous. In the case at as bar, the defendants is previously evidence that defendant had known no dangerous regarded or that as he knew or or any regard more in could have known its character dangerous seeing being otherwise than and or surroundings, plain- observing its location which and opportunity she had tiff an do time the toilet. entered MISSOURI, COURT OF SUPREME y.
Main Lehman. case Assn., Hollis Merchants’ Mo. was a 520, injured riding “something where while merry-go-round” similar to like facts have no ness to those in this case. Schoening, App. plain-
Kean v. is where a customer defendant’s backed into tiff, store, trap-door open just passed in the floor, she had which opened, over which afterwards closed, when engaged making purchases, while she was with- knowing out notice her, into it not fell open. thing
The same true is in substance as to McCullen App. v. Fishell Bros. Amusement 130— Mo. injured plaintiff previous knowledge no had no or Applegate tice of the door into which he fell. bearing Railroad, Mo. 173, has on the case. direct Moore v. injury Korte, 500, is another case open trap-door falling into an in a store previous knowledge had no or notice. any jurisdiction, No case cited or other any, we have been unable to find invitee knowledge immediately had full and information before his or her other com- obstruction plained negli- of, guilty defendant held gence plaintiff’s injury. or liable for the
We think the demurrer evidence should have *12 judgment been sustained. The below is Ragland, therefore reversed. C., concurs; G., Brown, sitting. PER foregoing opinion by CURIAM: The Small, hereby adopted opinion C., as the Graves, of the court. T. James Blair and Elder, JJconcur.