Clack v. Southern Electrical Supply Co.

Biggs, J. The plaintiff sues for personal injuries. The answer contains a general denial and a plea of contributory negligence. The undisputed facts are these: On the twenty-ninth day of May, 1895, the defendant occupied the first floor and basement of a building. It was engaged in the sale of electrical supplies, and had its goods stored in both apartments. The basement was reached by a stairway at the back end of the store room. On the day above mentioned the plaintiff went into the store for the purpose of buying some wire. He informed one of the defendant’s salesmen of his business, and the salesman informed him that the wire was in the basement. At that time they were standing in the back part of the room a few steps from the stairway leading to the basement. The head of the stairway -was covered by a trap door. The salesman raised up the door and fastened it to the wall. About midway of the stairway several steps were missing, of which [510] the officers of the defendant and the salesman were advised. The stairway was dark. The plaintiff attempted to descend the stairs, and by reason of the missing steps he fell and was injured. As to what was said at the time the salesman raised the trap door, the evidence is conflicting. The plaintiff’s testimony as to that is as follows: “I told him (the salesman) to go on down first, that it was dark. He said I have to fix up, fasten this trap door back * * * you go ahead, it is all right.” The following is the version of the salesman: “I got to the opening of the cellar door and forced the cellar door open, and when tying it on a nail against the wall Mr. Clack went behind my back and when he went down two steps I hollered ‘look out.’ He fell and I ran to his assistance.” He also testified that he told the plaintiff to remain in the store room and that he (witness) would! get the wire. The plaintiff denied this and asserted that the salesman asked him to go with him to the basement. There was a verdict for plaintiff for $500, upon which judgment was entered. The defendant has appealed, and it now urges many objections to the judgment, some of which we will discuss. ¿traction': aider by verdict. The first assignment is that the pleadings and proof are insufficient in that the petition fails to allege and plaintiff failed to prove that the defendant had control of the store room and basement. The averment is that “the defendant occupied the rooms as a place of business,” which by reasonable intendment included control of the rooms. At most,-the cause of action was imperfectly stated, which was cured by the verdict. At the instance of the plaintiff the court gave the following instruction: “The court instructs the jury that if they believe from the evidence that on the twenty-ninth day of May, 1895, the premises, number 11, North seventh street, [511] in- the city of St. Louis, were occupied by the defendant and were used by it as a place for the transaction of its business, and that Charles S. Clack, the plaintiff herein, entered upon said premises as a customer, under an invitation from the defendant, either express or implied, then the court instructs the jury that the defendant owed to plaintiff the duty of the exercise of reasonable care to keep said premises in a condition reasonably safe for the use of plaintiff in the transaction of the business in which he was engaged under such invitation, or to warn him of dangers known to it, or to its agents or employees, of which by the exercise of reasonable care might have been known to it or its agent or servant, and the court further instructs the jury that if they find from the evidence that the defendant failed to keep its premises in a reasonably safe condition, or failed to warn plaintiff of the danger of said premises, and that the failure of defendant or its agents or employees to keep said premises in a reasonable condition, or to warn plaintiff of the dangers thereon, caused the injuries complained of in this ease, and that plaintiff was exercising due care while on the premises of defendant and at the time he sustained the injuries sued for, then you must find your verdict for the plaintiff.” Some of the objections urged against the instruction are, that it did not require the jury to find that the defendant negligently failed to repair the stairway or to warn the plaintiff of the danger, or that the plaintiff was invited upon that part of the premises, or if so invited by the salesman, that the latter was acting within the scope of his authority. instructions, The instruction quoted and others given at the instance of the defendant had but little tendency to enlighten the jury as to the true issue. the evidence the only question is [512] one of fact. Did the salesman of the defendant invite the plaintiff to go into the basement in order that he might examine the wire! No question of the law is involved, for it is conceded that the defendant occupied the first floor and basement; that it kept its wares in both rooms; that the plaintiff entered the premises for the purpose of purchasing some wire; that the wire was in the basement; that the salesman who undertook to wait on the plaintiff was an employee of the defendant in the store; that the stairway was in a dangerous condition, and that its condition was known to the defendant’s officers and to the salesman; that plaintiff attempted to descend the stairway and was injured by reason of its bad condition, and that the salesman failed to advise plaintiff of the danger in time to prevent the accident. Hence there is no merit in any of the objections urged against the instruction. The instructions on both sides, when read together, fairly present the real issue, and the fact that in order to find for the plaintiff the jury was required to pass on other matters which were not in issue, is something of which the defendant can not complain. PaPm?AHabmty Sets"” aIeñt£or The defendant offered to prove that the salesman had instructions not to take customers down the stairway. This testimony was properly rejected. Under the circumstances the act of the salesman in directing the plaintiff to go down the stairs (if he did so direct) was within his apparent authority, and the defendant is responsible for the resulting injuries to plaintiff, although in giving the direction the salesman disobeyed the positive orders of the defendant. Harrison v. R. R., 50 Mo. App. 332; McNicols v. Nelson, 45 Mo. App. 446; Sparks v. Transfer Co., 104 Mo. 531. [513] Egésme:c nonprejudiciai error. [512] The circuit court permitted the plaintiff to prove that the salesman said that he forgot to notify the [513] plaintiff of the bad condition of the steps until it was to late to avoid the accident. According to plaintiff’s witness, the statement was made six or eight minutes after the plaintiff was injured. The admission of this evidence is sought to be justified on the ground that it was a part of the res gestae. It is sometimes difficult to apply this rule of evidence. The books furnish many tests. One test is that if it appears from the circumstances that the occurrence or transaction is speaking through the person, then it is part of the res gestae. But if it appears that the statemefits or declarations of the person are merely narrative of the past occurrence, the rule is otherwise. It seems to us that the alleged statement of the salesman did not fall within the rule. But defendant was not prejudiced by its admission. The salesman was a witness at the trial, and he denied that he made any such statement. He admitted, however, that he did not give the plaintiff any warning until it was too late. Finding no reversible error in the record, the judgment will be affirmed. All concur. Bland concurs in the result.