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07/26/83 ZELMA BECK v. EDISON BROTHERS STORES

July 26, 1983

ZELMA BECK, PLAINTIFF-APPELLANT,
v.
EDISON BROTHERS STORES, INC., DEFENDANT-RESPONDENT.



From the Circuit Court of the City of St. Louis; Civil Appeal; Judge Gary M. Gaertner; Reversed and Remanded

Motion for Rehearing Overruled, Transfer Denied September 1, 1983. Application Denied October 18, 1983.

Before Stewart, P.j., Stephan, Crandall, JJ.

The opinion of the court was delivered by: Stewart

This is an action for bodily injuries brought by plaintiff against Edison Brothers, Inc. Plaintiff, an employee of defendant, suffered a fractured hip as the result of a fall on the public sidewalk alongside of defendant's office building. Plaintiff is here on appeal from a judgment entered upon a jury verdict in favor of defendant.

We reverse and remand for a new trial.

Plaintiff contends that the trial court erred in (1) admitting evidence that Edison Brother's Stores Medical Plan had paid her medical bills and seventy percent of her wage loss because the indemnity for the loss came from a collateral source; (2) giving the instruction offered by defendant on contributory negligence because it failed to hypothesize disputed facts and assumed controverted facts.

The defendant contends that the issues raised by plaintiff need not be considered by this court because the court erred in failing to sustain respondent's motions for directed verdict because (1) plaintiff's only claim against defendant was under the Workers Compensation Act; (2) there was no substantial evidence to sustain any pleaded theory of liability against defendant.

Plaintiff was employed by defendant in the supply department at its office building which occupies the eastern half of a city block in downtown St. Louis. The building is bounded by Washington Avenue on the north, St. Charles Street on the south and Fourth Street on the east. The west side of the building is bounded by another office building. There is a pedestrian entrance on Washington Avenue and another on St. Charles. The St. Charles entrance is closer to the west end of the building than to the east end of the building. The driveway, garage entrance, loading and freight elevator are located to the west of the St. Charles Street pedestrian entrance. The St. Charles Street entrance is manned by a security guard and available for entrance at all times. The Washington Avenue entrance opens at 7:00 a.m.

December 29, 1976 was a bitter cold day. It had snowed the night before and there was ice beneath the snow. Plaintiff's neighbor drove her that morning. He let her out of his car on the west side of Fourth Street at St. Charles. Plaintiff alighted from the passenger side of the car and the neighbor drove away. Plaintiff walked to the west curb and crossed the west sidewalk of Fourth Street and headed west on the north side of St. Charles toward the St. Charles Street entrance to defendant's building. While walking along St. Charles Street she "hit ice and fell." There was not an "enormous" amount of snow but there was snow all over her coat after she had fallen. Plaintiff suffered a fractured right hip as a result of her fall.

Other facts essential to the determination of the issues raised will be developed as the issues are discussed.

We first consider defendant's contention that the trial court lacked subject matter jurisdiction because the plaintiff was an employee of defendant and under the facts of this case the only remedy available to plaintiff was a claim for workers compensation.

The basic question is whether the injury arose "out of and in the course of" the person's employment. Injuries sustained by an employee while going to or from work are not generally held to arise out of and in the course of employment. Kammeyer v. Board of Education, 393 S.W.2d 122, 130 (Mo. App. 1965). An exception to this rule exists where the off-premises point is on the only route or the normal route that employees must take to get to their employment and there exists a special hazard, one to which the employee is exposed by reason of the employment, to which the general public is not subjected. Hunt v. Allis-Chalmers Manufacturing Co., 445 S.W.2d 400, 406 (Mo. App. 1969).

In this case plaintiff was traversing a sidewalk in the City of St. Louis that was open and available to the general public. Plaintiff was subject to the same hazards to which the general public was exposed and she was not, by reason of her employment, exposed to a greater danger than the public at large. Kammeyer v. Board of Education, 393 S.W.2d 122, 131 (Mo. App. 1965).

Defendant relies on Hunt v. Allis-Chalmers, supra. A case in which the employer encouraged proper use of a parking lot a part of which was made available to its employee by the owner of the lot. To get to the employer's plant from the parking lot employees were required to cross railroad tracks. The claimant's decedent in that case was killed by a train while crossing the tracks on his way to work. The court in that case said "as such his status was ...


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