ON MOTION FOR REHEARING. In motion for rehearing the defendant invokes the rule that a state of facts once shown to exist will be presumed to continue until the contrary is shown; and argues that when plaintiff went from the kitchen the trapdoor was open, and that it was her duty when she returned some ten minutes later "to ascertain whether or not the trapdoor was open before she stepped into the pantry, which could easily have been done by turning on the light or feeling with her foot."
The rule invoked does not apply to the facts in the instant case for the reason that while plaintiff was absent from the kitchen there was a change in conditions in one important particular, namely, the light in the basement was turned off. Had that change not been made the open stairway would have been discovered by plaintiff the instant she moved the curtain door and the accident would have been averted. Thus the jury could very well find it was the change in conditions which caused the injury.
The rule governing the determination of the question of the contributory negligence of a plaintiff in an action such as the present action has been stated in various ways.
"Where reasonable minds may differ as to the inferences to be drawn from facts and circumstances tending to prove contributory negligence, the question is one for the jury." [Compton v. Louis Rich Const. Co., 287 S.W. 474, 483.]
In the case of Wilson v. Wells, 13 S.W.2d 544, the Supreme Court in discussing the question of the plaintiff's contributory negligence, said:
"Negligence does not become a question of law alone, unless the acts constituting it are of such a character that all reasonablemen would concur in pronouncing them so. Human conduct is to be judged by human standards." (Italics ours.)
The Supreme Court in the case of Cento v. Security Bldg. Co., 99 S.W.2d 1, 7, quoted approvingly from the opinion in the case *Page 311 of Crawford v. Kansas City Stock Yards Co., 215 Mo. 394, 114 S.W. 1057, as follows:
"As a general rule a man is not required to look for danger when he has no cause to anticipate danger, or when danger doesnot exist except it be caused by the negligence of another." (Italics ours).
"The rule as to the quantum of contributory negligence which is sufficient to prevent recovery is that it must be such as to enter into and form the direct, producing, and efficient cause of the casualty, and absent which the casualty would not have happened." [Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S.W. 1144; Hires v. Letts Melick Grocery Co., 296 S.W. 408.]
It must be borne in mind the negligence of Blosser in turning off the light and leaving the trapdoor open created a dangerous condition; that had the light been left on or the trapdoor closed that danger would not have existed; that to say it was the duty of plaintiff to ascertain the conditions would be to say she was under duty to act upon the presumption Blosser had been negligent. She had right to believe and act upon the belief that Blosser had not been guilty of a positive wrong.
The defendant cites the following cases: Mullen v. Sensenbrenner Mere. Co., 260 S.W. 982; Main v. Lehman,294 Mo. 579, 243 S.W. 91; Swanson v. Schoenhofen Brewing Co.,215 Ill. App. 185.
In the Mullen case the plaintiff fell on the entrance of the defendant's store building and was injured. She was denied recovery for the reasons (1) that there was no evidence the defendant was negligent and (2) she was "fully notified of the condition" of the entrance before she went upon it.
In the present case the plaintiff was not fully notified of the condition; on the contrary the defendant's employee by turning off the light concealed the dangerous condition.
In the Main case the plaintiff fell and was injured while descending a step in defendant's store. She was held guilty of contributory negligence because she had "ample notice of the step and its location and the whole situation just a moment before the injury."
In the case at bar the true condition was concealed by turning off the light; when the trapdoor was closed the floor was dark, and the stairway was dark when the light in the basement was not on.
The Swanson case was an action to recover for the death of a bartender.
Decedent suffered injuries which caused his death by falling through an open trapdoor in a darkened room into which he walked "without turning on the electric light, and in assuming, as he must have done, that the trapdoor was closed, not open, and that he could safely walk upon it." Judgment for the plaintiff was reversed on two grounds: (1) "Plaintiff did not prove by apreponderance of the evidence that defendant's employees or either of them left the *Page 312 trapdoor open;" and (2) "the whole evidence considered, the accident to deceased resulted from his entire lack of ordinary care for his own safety." (Italics ours.)
It will be noted the question of negligence was determined as one of fact. The judgment was reversed "with finding of facts" in which the court said:
"The court finds as ultimate facts that defendant was not guilty of any negligence charged against it in plaintiff's declaration, and further that plaintiff's intestate suffered the accident set out in the declaration as a result of his own negligent conduct."
In actions at law the Missouri rule denies to appellate courts the power to determine whether any litigant proved an issue of fact by a "preponderance of the evidence," or to consider the "whole evidence" in determining any question of fact, the rule being that the trier of the fact in the trial court passes upon all questions of fact. If there be evidence tending to prove a fact the value thereof is for the trier of the fact in the trial court and the finding thereon is conclusive on appeal. Therefore the statements and rulings in the Swanson case are of little or no value in determining the instant controversy.
Applying the rule announced by Supreme Court in the cases cited herein to the facts of the instant case, we hold we cannot say plaintiff was guilty of contributory negligence as a matter of law.
The motion for rehearing is overruled. Sperry, C., concurs.