Barber v. Kellogg

• Decision Date: 20 December 1938
• Docket Number: No. 35900.,35900.
• Citation: 123 S.W.2d 100
• Court: Missouri Supreme Court
• Parties: BARBER v. KELLOGG et al.

123 S.W.2d 100

BARBER v. KELLOGG et al.

No. 35900.

Supreme Court of Missouri, Division No. 2.

December 20, 1938.

Error to Circuit Court, Buchanan County; Sam Wilcox, Judge.

Action by Mattie Barber against George Kellogg and others for injuries sustained when plaintiff fell while descending stairs in defendants' apartment building. A judgment for plaintiff, after defendants sued out a writ of error, was reversed by the

Court of Appeals, 111 S.W.2d 201, which then certified the case to the Supreme Court.

Judgment of the trial court reversed and cause remanded.

Randolph & Randolph, of St. Joseph, for plaintiffs in error.

Edw. B. Wilkinson, of St. Joseph, John Robison, of Maysville, and Mayer, Conkling & Sprague, of St. Joseph, for defendant in error.

WESTHUES, Commissioner.

This suit was instituted by Mattie Barber, defendant in error, against the plaintiffs in error to recover damages for personal injuries alleged to have been sustained when she fell while descending a flight of stairs in an apartment building owned by plaintiffs in error. There was a verdict and judgment for defendant in error in the sum of $1800, and plaintiffs in error sued out a writ of error in the Kansas City Court of Appeals. The court of appeals reversed the judgment but certified the case here on the theory that the opinion was in conflict with a decision of the St. Louis Court of Appeals in the case of Sherman v. Alexander & Sons, 108 S.W.2d 616.

The parties lived in the city of St. Joseph, Missouri. Defendant in error was plaintiff in the circuit court and the plaintiffs in error were the defendants. The defendants were George Kellogg and his wife, and George Kellogg as guardian and curator of Carl DeMond, a person of unsound mind. The parties will be referred to in this opinion as designated in the circuit court. The defendants were the owners of a three story building. All three floors were rented either for business purposes or apartments. The tenants reached the second and third floors by means of a common stairway. The plaintiff had lived in the building for a number of years. In substance her petition charged that the defendants were negligent in failing to maintain sufficient light for the hall and stairway; that the stairway was narrow and winding; that about half-way down there was a turn at right-angle; that the stairway, as constructed, was not reasonably safe without artificial light at the top and bottom. Plaintiff alleged that on February 22, 1934, at about 7:00 p. m., she attempted to descend the stairway and while doing so fell and was injured; that at the time it was so dark she could not see the steps. Plaintiff plead an ordinance requiring landlords to maintain lights in the public stairways and corridors. Plaintiff also specifically charged that the defendants failed to maintain an electric switch at the second floor of said stairway so that plaintiff and other persons descending could turn on the light without going to the bottom of the stairway for that purpose. Defendants' answer admitted ownership of the building, but denied the other allegations of the petition and also plead contributory negligence as a defense. The following facts may be conceded. Plaintiff, a tenant living on the second floor, fell as she attempted to descend the stairway, and sustained serious injuries. This occurred on February 22, 1934. The stairway was used by all the tenants on the second and third floors. The defendants had provided lights for the purpose of illuminating the stairway and halls. At the time plaintiff fell the light at the second floor was burning but the one at the bottom of the stairway was not. There was no electric switch at the second floor for the purpose of turning on the light at the bottom of the stairway. There was a sharp dispute as to the exact time plaintiff fell. Defendants introduced evidence that it was before 6:00 p. m., and plaintiff introduced substantial evidence that she fell sometime after 6:30 and before 7:00 p. m. There was also a dispute as to whether it was dark in the hall and on the stairway at the time plaintiff fell. There appears in the briefs a sharp dispute between counsel as to whether it was customary for the tenants in the building to turn on the lights in the hallways or whether defendants had assumed and performed that duty. We say a sharp dispute between counsel because we find very little evidence in the record upon which to base a finding either way. The Kansas City Court of Appeals ruled that landlords were not required,...