St. Gemme v. Osterhaus

• Citation: 294 S.W. 1022
• Decision Date: 03 May 1927
• Docket Number: No. 19604.,19604.
• Parties: ST. GEMME v. OSTERHAUS.
• Court: Court of Appeal of Missouri (US)

294 S.W. 1022

ST. GEMME v. OSTERHAUS.

No. 19604.

St. Louis Court of Appeals. Missouri.

May 3, 1927.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

Action by Daisy St. Gemme against Gustav Osterhaus. Judgment for plaintiff, and defendant appeals. Affirmed.

Frank Coffman, of St. Louis, for appellant.

Charles M. Hay and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. The cause was tried to a jury, there was a verdict and judgment in favor of plaintiff for $500, and defendant appeals.

Defendant owns a store building located at the northeast corner of Victor street and Gravois avenue. Victor street runs east and west, and Gravois avenue runs northeast and southwest. The street and avenue intersect each other at an acute angle. The lot on which defendant's building is located lies within the angle thus formed by the street and avenue. The building is in the form of a trapezium, and fronts southwest; towards the vertex of the angle. The front of the building is about 6 feet wide and is located about 10 to 11 feet from the vertex of the angle. Double doors extend across the entire front of the building. This is the main entrance to the building. There are sidewalks on Victor and Gravois along the sides of the building, and also along the front of the building. There is an opening in the sidewalk immediately in front of the building about 3½ feet long and about 1 foot wide. This opening, it appears, was originally intended to admit light and air to the basement of the building. There was originally an iron grate over the opening, but afterward the opening was covered by a board. Two iron bars were placed parallel to each other lengthwise of the opening to support the board. The bars rested on rocks at each end of the opening. The defective condition of this covering is responsible for the injuries for which plaintiff sues. On January 1923, the defendant, being then the owner of the premises, leased the same to J. F. Ellis and Flora Ellis by written lease duly executed by the defendant and his wife, as parties of the first part, and by said J. F. Ellis and Flora Ellis, as parties of the second part. The lease provides, inter alia, as follows:

"The said parties of the first part, for and in consideration of the rents, covenants, and agreements hereinafter mentioned and hereby agreed to be paid, kept, and performed by the said parties of the second part, their executors, administrators, and assigns, have leased, and by these presents do lease to the said parties of the second part for the term of one year commencing on the 1st day of February, 1923, and ending on the 31st day of January, 1924, the following described premises in the city of St. Louis, state of Missouri, to wit: The entire store and three living rooms in the rear of the premises known as and numbered 2240 Gravois avenue, St. Louis, Mo. * * * All repairs and alterations deemed necessary by said lessees to be made at the expense of said lessees, with the consent of said lessors, and not otherwise. And it is hereby covenanted that, at the expiration of this lease or the termination of the term hereby created, the said tenement and premises are to be surrendered to said lessors, their, assigns or successors, in as good condition as when received, excepting only natural wear and decay or the effects of accidental fire. * * * The said premises shall be kept in good order and repair, and free from any nuisance or filth upon or adjacent thereto, at the expense of said lessees, and shall not be used by said lessees, or by any person occupying the same in any manner or for any purpose prohibited by any law or ordinance, or by the terms hereof. The said lessors, or their legal representatives, may, at all seasonable hours, enter into said premises for the purpose of examining the condition thereof and of making such repairs as lessors may see fit to make. * * * Said lessees will erect fire escapes on said premises at their own cost, according to law, should the city or state authorities demand same. The said premises shall not be used or occupied for any purpose other than that of restaurant and confectionery without the written consent of said lessors or their legal representatives."

Plaintiff was injured on June 5, 1923, about 9 o'clock in the evening, while the lessees occupied the premises under this lease. Plaintiff went to the store to purchase ice cream. As she was leaving the store, she stepped with her left foot on the board covering the opening in the sidewalk. The board gave way and went down, and her left foot and leg went down into the opening, and she was thereby caused to fall, and thus sustained the injuries for which she sues.

One of the witnesses for plaintiff described the defective condition of the covering of the opening in the sidewalk, as it existed prior to plaintiff's...