Bleisch v. Helfrich

• Decision Date: 05 June 1928
• Docket Number: No. 20339.,20339.
• Parties: BLEISCH v. HELFRICH.
• Court: Missouri Court of Appeals

6 S.W.2d 978

BLEISCH v. HELFRICH.

No. 20339.

St. Louis Court of Appeals. Missouri.

June 5, 1928.

Rehearing Denied June 21, 1928.

Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.

"Not to be officially published."

Action by Mae Bleisch against Lizzie Helfrich. Judgment for plaintiff, and defendant appeals. Affirmed.

John B. Dale, of St. Louis, for appellant.

J. H. Drucker, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries. The verdict of the jury was for plaintiff, in the sum of $1,050, and, from the judgment rendered in conformity therewith, defendant, after an unavailing motion for a new trial, has brought the case to this court on appeal.

Defendant is the owner of a two-family flat, situated at 3449 Missouri avenue, in the city of St. Louis, the lower premises of which had been occupied by plaintiff and her husband for some sixteen months, when she was injured on February 2, 1924. The pertinent facts of the case are few and simple. It appears that plaintiff was engaged in sweeping out a gangway extending along the side of the building, and in some manner happened to step backwards against a banister which was over a flight of steps leading down into the basement, and of common use to the public and to plaintiff and the other tenants alike. From the pressure thus applied against it, the banister was caused to give way, and plaintiff was precipitated down into the cellar landing, five feet beneath, and was painfully and severely injured.

In her petition, plaintiff counted upon negligence on the part of defendant in permitting the banister to become decayed, weakened, and rotten, and in failing to have repaired the same, when she knew, or by the exercise of ordinary care should have known, of its defective condition.

Defendant, in her answer, alleged that plaintiff had knowledge of the decayed, insecure, and unsafe condition of the banister, and that her injuries had directly and proximately resulted from her own act in leaning against the same.

The testimony disclosed that the banister in question was constructed in the ordinary manner, out of a 2×4 timber, and rested upon the top of two upright posts. It was further shown that defendant had allowed her property generally to get badly in need of repairs; that she had difficulty in keeping tenants on the premises; and that the upper part of the particular banister in controversy had become so rotten that, when the pressure from plaintiff's body was applied against it, the decayed wood pulled away from the nails and broke into several pieces. Defendant herself had been on the premises only a few months previously, at which time she had looked after the making of certain repairs, and, in addition, her agents called at regular intervals to collect the rent from the tenants.

It appears that, prior to her injury, plaintiff had been steadily employed down town, and thus had been afforded an opportunity to do outside work around her home only on occasional Saturday afternoons, when she would infrequently make use of the basement steps. She testified positively that she did not know that the banister was rotten, and that at no time had she been informed that it was not as strong and secure as it should have been.

The only point brought to our attention on this appeal has to do with the propriety of the refusal of the court to direct a verdict for defendant at the close of all the evidence. Briefly stated, the position of counsel seems to be twofold in nature: First, that the proof was insufficient to establish liability on the part of defendant; and, second, that the facts and circumstances in the case should be held to have shown conclusively that the injuries sustained by plaintiff were directly and solely caused by her own negligence.

As...