under the water along the length of a wharf, plaintiff using due care at the time, and on the invitation of defendant, sailing his schooner through the water up to the wharf when his vessel hit the obstruction and was damaged.

"That where premises are in the occupancy and under the control of a party and used by him as a place for the transaction of business, and persons are either expressly or impliedly invited thereto to trade, the proprietor owes to those entering therein or thereupon in response to such invitation, the duty of ordinary care to keep said premises in a condition reasonably safe for the use of such parties so invited in the transaction of their business; and if the premises are not in such reasonably safe condition, it is the duty of the proprietor to warn the customer of such unsafe condition if he knows of it and it is unknown to the customer."

A multitude of cases are cited in support of this really elemental proposition. We followed it, quoting from it to some extent, in Behre v. Hemp & Co., not to be officially reported, but see 191 S. W. 1038. See also 21 Am. & Eng. Ency. of Law (2d Ed.) p. 471, par. 4.

Learned counsel for appellant quotes from the decision of our court in Halloran v. Pullman Co., 148 Mo. App. 243, 127 S. W. 946, and cases there cited. We dismiss that case from consideration here because it was a case between an employer and employé and turned upon the duty of the employer to furnish a reasonably safe place to work; somewhat akin, it is true, to the relation between invitor and invitee but not sufficiently parallel in its facts to make it here appli

cable.

[2] Where injuries should not reasonably have been apprehended, no duty is owing. 21 Am. & Eng. Ency. of Law (2d Ed.) p. 471, par. 3.

"Though a party is on the defendant's premises by invitation and so has a duty owing to him by the defendant, the latter will not be deemed negligent in failing to provide against circumstances which could not have been foreseen. 21 Am. & Eng. Ency. of Law (2d Ed.) p. 472, par. 4a.

In O'Donnell v. Patton, 117 Mo. 13, 22 S. W. 903, the duty and liability of the proprietor of business premises is stated to be the exercise of reasonable care to keep the premises in a condition reasonably safe

In American Brewing Association v. Talbot, 141 Mo. 674, loc. cit. 683, 42 S. W. 679, 682 (64 Am. St. Rep. 538), it is said:

"Numerous authorities hold that it is not negligence not to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated, and would not, unless under exceptional circumstances, have happened."

Quoting from Ray on Negligence of Imposed Duties, pp. 133, 134, our Supreme Court said in the above case (141 Mo. loc. cit. 684, 42 S. W. 682, 64 Am. St. Rep. 538):

"The proper inquiry is not whether the accident might have been avoided, if the one charged with negligence had anticipated its occurrence, but whether. taking the circumstances as they then existed, he was negligent in failing to anticipate and provide against the occurrence. The duty imposed does not require the use of every possible precaution to avoid injury to individuals, nor of any particular means which it may appear, after the accident, would have avoided it."

On the same page our Supreme Court quotes from Webb's Pollock on Torts (Enlarged Am. Ed.) pp. 45, 46, as follows:

"Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at behavior we are to look as the standard of duty, all. A reasonable man, then, to whose ideal will neither neglect what he can forecast as probable, nor waste his anxiety on events that * This being the are barely possible. standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in defendant's place is no wrong and no liability." should have foreseen as likely to happen, there

*

*

In Dean v. Kansas City, St. L. & C. R. R. Co., 199 Mo. 396, loc. cit. 408, 97 S. W. 910, and referring to McMahon v. Pacific Express Co., 132 Mo. 641, 34 S. W. 478, the court accepts this as a correct definition:

"Negligence consists in doing something which a reasonably prudent man would not have done under the circumstances, or in failing to do something which a reasonably prudent man under the circumstances would have done."

After having given a number of definitions of negligence, it is further said in that case (199 Mo. loc. cit. 408, 97 S. W. 917), that they mean "at bottom the same thing, viz.: Neg

Carleton v. Franconia Iron & Steel Co., 99 Mass. 216, referred to in O'Donnell v. Pat

care is a care adjusting itself to the circumstances of the case." The court then follows with practically the same quotations and citations as were used in American Brewing Ass'n v. Talbot, supra.

[3] In Benton v. St. Louis, 248 Mo. 98,

This, says our Supreme Court, in Benton v. St. Louis, supra, 248 Mo. loc. cit. 110, 154 S. W. 473, is the doctrine of our Supreme Court, citing American Brewing Ass'n V. Talbot and Dean v. Railroad Co., supra.

In State ex rel. Lusk et al. v. Ellison et al., Judges, 271 Mo. 463, 196 S. W. 1088, quashing the judgment of the Kansas City Court of Appeals in Brightwell v. Lusk et al., 194 Mo. App. 643, 189 S. W. 413, it is said (271 Mo. loc. cit. 474, 196 S. W. 1091): "From it all, we take it, that the established rule of this court is that if the injury, as occasioned, was not one which could have reasonably been anticipated as a sequence of the alleged negligent act, then the alleged negligent act was not in law, the proximate cause of the injury, and no recovery can be had therefor."

The conclusion from all of these authorities, applied to the facts here, is that as a reasonable man, applying that term to the defendant corporation, defendant could not have anticipated that any damage would have occurred to any person from walking over this apparently dry part of the floor, and is not to be held guilty of any actionable negligence. While plaintiff is not to be chargeable with contributory negligence, it is clear that the part over which she walked appeared to her to be dry when she stepped on it, and she only concluded it was not dry, but slippery, from the fact that she slipped on it. If it appeared dry and safe to plaintiff, why should the defendant be held guilty of negligence in not warning against its use? For these reasons the demurrers of defendant should have been sustained. So concluding, it is unnecessary to notice the other assignments of error as to instruction and as to failure to grant a new trial on the ground of newly discovered evidence. The judgment of the circuit court is reversed.

BECKER, J., concurs. ALLEN, J., dissents in an opinion filed, and he deeming the conclusion reached contrary to decisions of the Supreme Court named by him in his dissenting opinion, the cause and all the files therein are hereby certified to the Supreme Court.

soapy and slippery, having been made so by a servant of defendant who was then engaged in cleaning and washing the same. The trial before the court and a jury resulted in a verdict and judgment for plaintiff in the sum of $2,500, and defendant prosecutes the appeal.

The evidence discloses that the defendant, a public service corporation distributing electric current to residents of the city of St. Louis, maintained a public office in said city where its patrons were invited to come for the payment of bills and for other purposes, and that on or about September 26, 1914, plaintiff, being a customer of the defendant, entered this office for the purpose of paying a bill due defendant, and that in walking across the floor to a counter where such bills were paid she slipped and fell to the floor whereby she was injured. It is conceded that defendant's porter was at the time engaged in mopping the floor, using, therefor water with soap powder in it.

Plaintiff testified that when she entered the office, and started to proceed to the counter, she saw before her defendant's porter with a mop and a pail near which was a puddle of soapy water; that she stepped to one side and passed between the puddle and the wall, and that in so doing she suddenly slipped and fell heavily to the floor. It appears that she slipped or fell into the puddle of soapy water, for the testimony is that afterwards a white substance, appearing to be soapy, was found upon her dress from the bottom of her skirt to her shoulder. In her testimony she at first referred to the place upon which she stepped, and where she slipped, as being a "dry place," which she supposed had been left to walk upon. Later she said that she "supposed it was dry, but it wasn't dry."

On cross-examination she testified that after her fall she observed the place where she slipped had evidently been "done" before she stepped upon it; i. e., had been "wiped up," and was wet. She repeatedly stated that the place where she fell was "slippery"; that when she stepped upon it her feet immediately slipped from under her. She further testified that after picking out what she thought was a dry place she went on towards the counter without looking further at the floor.

Plaintiff was unable to state whether the

dence and permitting the case to go to the jury. As to the character of plaintiff's testimony, concerning which so much is said by appellant's learned counsel in argument, it need only be said that when viewed in the proper light, on demurrer, the effect thereof is to show that the place where plaintiff slipped, immediately adjoining a puddle of soapy water or suds, was wet from having been washed or wiped over with such soapy water, and was in fact quite slippery; that while it was not covered with surplus suds it was wet from having been recently wiped up therewith, and being a smooth surface, with a fresh coating of soapy water upon it, was slippery, though plaintiff did not discern this.

Plaintiff was an invitee upon the premises, for the purpose of transacting business with the defendant. She was impliedly invited to enter there for such purpose, and defendant owed her the duty to exercise ordinary care to keep such premises in a reasonably safe condition for such use by her and others so invited there. See Glaser v.

Rothschild, 221 Mo. 180, 120 S. W. 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; Shaw v. Goldman, 116 Mo. App. 332, loc. cit. 338,

92 S. W. 165.

It is urged, however, by appellant that the defendant had the right to clean its office floor, and that no negligence can be predicated thereupon for the reason that a reasonably prudent person would not, under the

circumstances, have anticipated that any injury would result thereby to any person invited upon such premises.

currence of such an injury as a sequence to the alleged negligent act.

In Nephler v. Woodward, 200 Mo. 179, 98 S. W. 488, the plaintiff's evidence went to show that her foot became caught in a small hole or worn place in a carpet in the aisle of defendant's theater by reason whereof she fell and was injured. In the course of the opinion the court said:

"This is rather an unusual case. A hole in a carpet is not ordinarily such a menace to life or limb as would justify the court in assuming it to be dangerous to persons passing over it, and the question of whether it was in this instance of such a character that the proprietors of the theater ought to have recognized it as a danger to their patrons and have guarded against it was a question of fact for the jury."

It was further held, however, that it was essential that the jury be explicitly required to find that:

"The condition was such that reasonably prudent men engaged in that business would by the exercise of ordinary care foresee or anticipate the danger."

While that case is not parallel with this upon the facts, like principles appear to govern here; that is to say, in this case, as whether a reasonably prudent person would in the Nephler Case, the question as to have foreseen or anticipated that an invitee condition shown to have existed, was, we was likely to be injured, by reason of the think, one for the jury.

Appellant has called our attention to Chil

berg v. Standard Furniture Co., 63 Wash. 414, 115 Pac. 837, 34 L. R. A. (N. S.) 1079,

where the plaintiff was injured by a fall ocbeneath her feet upon a polished hardwood casioned by the slipping of a small rug from floor, while she was examining rugs and carpets in the defendant's place of business. It was held that plaintiff could not recov

396, loc. cit. 408, 97 S. W. 910; Benton v. St. Louis, 248 Mo. 98, loc. cit. 110, 154 S. W. 473; State ex rel. Lusk v. Ellison, 271 Mo. 463, 196 S. W. 1088. The doctrine of these authorities is beyond dispute, and we are here concerned only with the application thereof to the facts of this case. The ultimate question, upon which hinges liability vel non, is whether a reasonably prudent person, in the position of defendant, would have foreseen that some injury was likely to befall an invitee, coming upon the premises as did plaintiff, by reason of stepping upon the smooth surface of this floor, made slippery by a fresh coating of soapy water during business hours. But in order that a demurrer to the evidence may be properly sustained it must appear as a conclusion of law-so that reasonable minds cannot differ with respect thereto-that a reasonably prudent person, in the position of defendant, would not have anticipated the oc

of McIntire v. White, 171 Mass. 170, 50 N. E. sion inapplicable here. Likewise the cases 524, and Crafter v. Railway Co., L. R. 1, C. P. 300, are not in point.

In John Thomson Gro. Co. v. Phillips, 22 Colo. App. 428, 125 Pac. 563, cited by appellant, the plaintiff fell while in defendant's market, and thereafter a piece of "fatty substance" was found on her shoe "between the ball of the foot and the instep." It was not shown that the fatty substance was upon the floor, or, if upon the floor, that it had been there long enough to impart notice to defendant of its presence. And in Dudley v. Abraham, 122 App. Div. 480, 107 N. Y. Supp. 97, also cited by appellant, it was not shown that defendant was responsible for the presence of the water, or some slimy substance, upon the floor of defendant's store, or that the condition had existed for a sufficient time to impart notice of its presence.

Cases involving injuries by reason of slipping upon oily floors appear to be more closely in point than the cases mentioned above, while it is held that the fact that an

In Frost v. McCarthy, 200 Mass. 445, 86 N. E. 918, plaintiff slipped upon a small quantity of mortar that had fallen upon a step at the entrance of defendant's place of business. It was held that the question of defendant's negligence was for the jury. The court said:

"The material upon the steps does not appear to have been great in quantity or obviously of imminent danger in its character, yet considering all the circumstances, the smoothness of the step, which was of cement and glass set in an iron framework, the lumpiness of some of the mortar, and the fact that the place was evidently prepared as an entrance to a store where business was being conducted as usual, notwithstanding the reconstruction of the front of the building, we cannot say, as a matter of law, that this question was not for the jury." A demurrer to the vidence will lie only when the cause of action pleaded is unsustained by any material evidence or by any inference which may be reasonably drawn from the facts proved. Enloe v. Car & Foundry Co., 240 Mo. 443, loc. cit. 448, 144 S. W. 852. In passing upon the demurrer, the evidence is to be viewed in the light most favorable to plaintiff, giving plaintiff the benefit of every favorable inference which may be fairly and legitimately drawn therefrom.

"The court is required to make every inforence of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, have inferred in his favor. * But the court is not at liberty, in passing on such demurrer, to make inferences of fact in favor of defendant, to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff; that would clearly be usurping the province of the jury." Buesching v. Gas Light Co., 73 Mo. 219, loc. cit. 231, 39 Am, Rep. 503.

The Buesching Case, last cited, is a leading case in this state on the subject, and the doctrine thereof has been applied by our Supreme Court in a long array of cases which need not be here collated. And see 20 R. C. L. p. 166 et seq.

Considered in the light of these well-established principles, can it be said that this plaintiff failed to make out a case for the

must be placed upon the ground that it conclusively appears from the evidence adduced, so that reasonable minds could not differ with respect thereto, that a reasonably prudent person, in the position of defendant, would not have anticipated that any injury was likely to befall an invitee upon these premises by reason of a slippery condition caused by the presence of soapy water upon the smooth linoleum covering this floor, at a place over which customers of defendant were expected to walk in order to reach the counter. Viewing the evidence in the light most favorable to plaintiff, and giving her the benefit of inferences which may be drawn therefrom in her favor, it may be readily found that, while plaintiff did not step in the puddle of soapy water, she stepped upon a spot immediately adjacent thereto, which had been shortly or immediately theretofore wiped over with soapy water, which caused the smooth surface of the linoleum to become quite slippery. In this view of the evidence, it would seem that a court could not properly declare, as a conclusion of law, that a reasonably prudent person would not have anticipated that an injury of this character was likely to result from such slippery condition, permitted to exist (without any real necessity therefor so far as appears) during business hours. On the contrary, it would seem that the question as to what an ordinarily prudent person is one to be sent to the jury; and it was would anticipate, under the circumstances, submitted to the jury by appropriate instructions.

It appears that plaintiff cannot be held to be guilty of contributory negligence as a matter of law in stepping upon the particular spot where she fell. She was not required to make a minute examination of the very spot where she intended to step. See Quirk v. Seigel, 43 App. Div. 464, loc. cit. 466, 60 N. Y. Supp. 228; Graham v. Bauland, 97 App.

Div. 141, loc. cit. 143, 89 N. Y. Supp. 595. Her testimony tends to show that she exercised ordinary care for her own safety. She says that the place where she stepped and fell appeared to her to be dry when she stepped upon it; that she avoided the puddle, and passed nearer the wall, where it appeared to be safe to walk. It cannot well be said that plaintiff was guilty of negligence as a matter of law in failing to ascertain the true condition of this part of the floor.

I therefore dissent from the conclusion reached by the majority opinion, and, as I deem the decision contrary to the previous decision of the Supreme Court in Nephler v. Woodward, 200 Mo. 179, 98 S. W. 488, I request that the cause be certified to that court for final determination.