Bender v. Weber

• Decision Date: 31 May 1913
• Citation: 157 S.W. 570,250 Mo. 551
• Parties: LAURA BENDER v. GEORGE WEBER and ELIZA WEBER, Appellants
• Court: Missouri Supreme Court

157 S.W. 570

250 Mo. 551

LAURA BENDER v. GEORGE WEBER and ELIZA WEBER, Appellants

Supreme Court of Missouri, First Division

May 31, 1913

Appeal from St. Louis City Circuit Court. -- Hon. Charles C. Allen Judge.

Reversed.

Claud D. Hall for appellants.

(1) The court erred in refusing the instructions offered by defendants in the nature of a demurrer to the evidence at the close of plaintiff's case and at the close of the whole case. Buesching v. Gas Light Co., 6 Mo.App. 85; Larkin v. O'Neil, 119 N.Y. 221; Kean v Schoening, 103 Mo.App. 77. (2) The court erred in permitting the plaintiff to introduce evidence to the effect that children played in the alleyway. Fitzgerald v. Paper Co., 155 Mass. 155. (3) The court erred in refusing to permit witness Gaborino to state whether there was anything peculiar about the construction of the alleyway and cellarway. Cobb v. Railroad, 149 Mo. 609; Beard v. Car Co., 72 Mo.App. 591; Woerheide v. Car Co., 32 Mo.App. 369; Goins v. Railroad, 47 Mo 181. (4) There was no evidence that the defendants exercised exclusive control over the paved alleyway, or of the ingress or egress to these buildings, or that the public were authorized to use the alleyway or the rear door of the grocery. Shearman and Redfield on Negligence, sec. 503; Leonard v. Stores, 115 Mass. 89; Mellen v. Morrill, 126 Mass. 545. There was no evidence that these defendants had knowledge that the public used the alleyway or the rear door of the grocery, or that they licensed or invited the public or this plaintiff to use this alleyway or the rear door of this grocery store. (5) The petition does not show any relation of any character, existing at the time of the accident, between the plaintiff and defendants which imposed any duty or obligation upon the defendants toward plaintiff. Southcate v. Stanley, 1 Hurl. & N. 246; Gautret v. Egerton, 2 L. R. C. P. 370; Bolch v. Smith, 7 Hurl. & N. 738; Hounsel v. Smyth, 97 Eng. C. L. 729; Glaser v. Rothchild, 106 Mo.App. 418; Sweeny v. Railroad, 10 Allen (Mass.), 372; Barry v. Cemetery Association, 106 Mo.App. 358; Stevens v. Nichols, 155 Mass. 472; Sterger v. Van Sicklin, 132 N.Y. 499; Winkler v. Railroad, 169 Mo. 592; Davis v. Congregational Society, 129 Mass. 370; Nicholson v. Railroad, 41 N.Y. 529. The petition does not allege that the rear door of the grocery was used by the public entering and leaving the store, with the knowledge of the defendants. McCarthy v. Foster, 156 Mass. 511; Whitley v. McLaughlin, 183 Mo. 160. It was not negligence to fail to put a gate on the cellar stairway. Buesching v. Gas Light Co., 6 Mo.App. 85.

John T. Talty and E. V. Selleck for respondent.

(1) When a defect exists in a way or walk leading to several tenements leased to different tenants, and used in common by the tenants, and also by the public, the landlord is liable for injuries sustained in using the same. 1 Taylor on Landlord & Tenant (9 Ed.), p. 221; Carson v. Quinn, 127 Mo.App. 525; Poor v. Sear, 154 Mass. 539; Center v. Treadwell, 39 Ga. 210; Milford v. Holbrook, 9 Allen, 17; Buesching v. Gas Light Co., 73 Mo. 219; Redman v. Conway, 126 Mass. 251; Dallard v. Roberts, 130 N.Y. 273; Sawyer v. McGillicuddy, 81 Me. 322. (2) Respondent in proving the averments of her petition, that the way or walk was used in common by appellants' tenants, and also the public, was entitled to show that children as well as adults used it. (3) The petition contains every averment necessary in stating a cause of action of this character, and is well and carefully drawn and in no way susceptible to criticism even.

OPINION

LAMM, J.

Negligence. Personal injuries. Verdict and judgment for plaintiff for $ 1250. Appeal to the St. Louis Court of Appeals. Affirmed there by a divided court. Certified here under section 6 of the 1884-Amendment of the Constitution.

The pleadings fill no office for present purposes.

The case on the facts is this: There are two streets in St. Louis (Cardinal and Laclede) cutting each other at right angles. In one of such angles there is a group of buildings owned by defendants, husband and wife. The ground floors and basements of some are leased for business purposes, while the upper floors of those and the whole of the other buildings are flats or dwellings occupied by tenants for living purposes. There is a paved private courtyard or passageway for footmen only (somewhat like a patio) for access to the rear of all. For convenience of expression, we will call it the "courtyard," passim. To fill its office suitably (which office was that of giving access by way of common use to tenants and those other persons having a right to go to the rears of the group of buildings -- e. g., grocerymen, meat marketmen, milkmen, breadmen on their delivery rounds) said courtyard runs east and west and then turns north, taking the form of an "L." As said, this courtyard is private property, belongs to defendants, being cut off by lattice screens from both Cardinal and Laclede, with latched doors in the screens for ingress to and egress from the courtyard. It is not connected with any public alley. As said, defendants' tenants made common use of this courtyard when occasion called, this in addition to the use mentioned above. A minor or sporadic use also grew up, incident to the Woods tenement, which will be recurred to further on. At a certain place in this courtyard, the locus in quo, it is eight feet six inches wide from wall to wall, i. e., from north to south. The width is less at some other places. Ranged along the sides of this courtyard are breadboxes, gasoline tanks, ash bins (the latter possibly permanent) for the convenience of tenants -- we suppose, put there by them. There are also some cellarways running east and west lengthwise with the courtyard, and hard by the rear building walls, which cellarways lead to the basement cellars of those buildings having such cellars. These cellarways make openings, say, eight feet long and two feet three inches wide severally. They have no trap doors on top, but are cut off and guarded from the courtyard by wooden railings or banisters at one end and along one side (the other side being protected by the building wall) and one end was left open at the head of the cellar stairway, the latter leading down, say, eight feet, to the outside cellar door to the basement proper. The upper step of each of these cellar stairs is flush with the paved courtyard; and these stairways were built and arranged, as above described, some years gone, to-wit, at the time the group of buildings were constructed by their former owner in accordance with an architect's design.

At the times in hand the ground floor of one of these buildings was in the possession of two brothers, named Wood, as tenants of defendants, the Woods running a grocery there. The cellar under that ground floor was leased with the ground floor itself to them for that purpose, including the right to the use of the stairway leading thereto. In this cellar the Woods stored and kept goods, boxes, etc., and their necessary outside access to this cellar was, as suggested above, by one of the described cellar stairs, opening into the courtyard, and subjected to this private and exclusive use every day about their business.

There was a rear door to Woods's grocery opening on the courtyard. The upper step of the cellar stairway in question (said step being at a right angle to the building) began nine inches or so west of the west jamb of this rear door, and the door sill of that door was about two inches above the level of the courtyard pavement. We take it from the record, including photographs in evidence, that the ordinary line of travel east and west in this courtyard (that is, the customary use) was on about six feet of clear space of pavement, to-wit, the whole courtyard, saving and except the space taken up next to the rear building walls by ash bins, breadboxes, oil tanks, cellarways, etc. It will thus be seen that to fall into this cellarway anyone leaving this rear door would have to turn to the west, directly on stepping out, and in the line of the obstructions on that side, instead of taking pains to go north far enough to get outside the line of said obstructions and into the clear space or line of travel of the courtyard east and west.

In this condition of things, and not otherwise, on a Sunday evening, October 28, 1905, plaintiff (an intelligent housemaid thirty-three years of age, with good eyes) entered this courtyard from Cardinal on an errand for her mistress, a Mrs. Conley, to get from Woods's grocery some oysters and milk for lunch. Mrs. Conley was one of defendants' tenants, and the rear of her tenement, with windows therein, was on this courtyard and but a few feet away from Woods's rear door and in plain view of said door and cellarway from said windows.

Lying right under her eye, plaintiff could see and did see this cellarway from the Conley tenement windows, as said. Moreover, she had been in and out the grocery through this rear door. She admits she knew all the time she lived with Mrs. Conley that this cellarway was open at one end, the end next to Woods's rear door, but she says she did not know how close on the west its upper step was from the door sill of this rear door. All the testimony is to the effect that it was not dark but it was "just getting dusk." We take it the light was such that plaintiff could have seen everything there was to see if she had looked at the immediate time. She says she saw at the very time the banisters of the cellarway and saw the opening at one end where the steps begin "but did not know it was so close." Her story is that coming with a bucket in hand to the rear door she took hold of the door knob, turned it and walked in; that she found there the...