Broderick v. Brennan, 25734.

• Decision Date: 04 May 1943
• Docket Number: No. 25734.,25734.
• Citation: 170 S.W.2d 686
• Parties: BRODERICK v. BRENNAN et al.
• Court: Missouri Court of Appeals

170 S.W.2d 686

BRODERICK v. BRENNAN et al.

No. 25734.

St. Louis Court of Appeals. Missouri.

May 4, 1943.

Rehearing Denied May 21, 1943.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Action by Joseph A. Broderick against J. Wallace Brennan and J. Wallace Brennan Real Estate Company to recover for personal injuries sustained in a fall. From a judgment for defendants, plaintiff appeals.

Judgment affirmed.

Herman D. Olian and John W. Joynt, both of St. Louis, for appellant.

Moser, Marsalek & Dearing and Theo. J. Krauss, both of St. Louis, for respondents.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff when he fell while attempting to descend from the front porch of the premises at 817 North Kingshighway, in the City of St. Louis, where he was rooming with a family named Westenheiser, who occupied the premises as tenants of defendant J. Wallace Brennan Real Estate Company, the record owner of the property. The codefendant in the case is J. Wallace Brennan himself, who is engaged in the real estate business through the corporation which bears his name.

Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned against plaintiff, and in favor of defendants. Judgment was entered in accordance with the verdict; and plaintiff's appeal to this court has followed in the usual course.

There are four wooden steps which lead down from the porch to a concrete walk, which in turn leads out to the sidewalk.

Brennan was having some repair work done at the time, which included the replacing and painting of certain of the steps. Plaintiff's evidence was to the effect that new treads had been provided for the top three steps, while, according to defendants' evidence, it was only the second and third steps that had been replaced.

The accident happened about nine o'clock in the morning as plaintiff was leaving the house for his work for the day.

Brennan had two painters on the job, one of whom was engaged in applying the ground coat to the new boards that had been installed, and was down to the last edge of the second step from the bottom when the accident occurred. The other man was painting the cornice while standing on a ladder which Brennan was holding at the base of the ladder which was resting partly on the grass and partly on the concrete about two feet out from the bottom of the steps.

The evidence was in sharp conflict upon the question of the precise manner in which the accident occurred.

According to plaintiff's version of the facts, when he came out on the porch, he noticed the fresh paint, and announced that he would turn back and leave by the rear, but was told by Brennan that the paint was dry, and that he might come on down the steps as he had intended. Being unable to tell for himself whether the paint was dry or not, he relied on Brennan's assurance that he might proceed, and stepped down on the first step below the floor of the porch, where his foot slipped, causing him to fall and strike the concrete landing at the bottom of the steps. He denied that a bench was standing across the top of the steps, and was supported in this by Mrs. Westenheiser, who testified that at the time the painting was being done, the porch furniture had not as yet been brought out upon the porch.

Defendants' version, on the contrary, was that before starting in upon the painting, Brennan had placed a bench across the top of the steps to prevent any one from undertaking to use them while the work was going on, but that when plaintiff came out on the porch, he pushed the bench aside with his foot, and stood at the top of the steps swinging his arms with the evident intention of jumping clear of the painted steps. Brennan called out to him not to jump, but notwithstanding the warning, plaintiff jumped and caught his heel upon the second of the two freshly painted steps, causing him to slip and fall in a sitting position upon the bottom step.

Conformably with the charge of negligence in the petition and with the facts shown by his own evidence in support thereof, plaintiff submitted his case by his instruction No. 1, which told the jury, in substance, that if they found and believed that Brennan had assured plaintiff that the steps were safe for use and had invited him to use the same; that plaintiff, in reliance upon such assurance and invitation, had attempted to use the steps; that the steps were not dry, but were covered with wet paint and were slippery and not reasonably safe to use; and that because of such condition plaintiff slipped and fell down the steps and sustained the injuries for which he sued, then the verdict should be in favor of plaintiff, and against both the defendants.

Defendants had answered separately, each by a general denial coupled with a plea of contributory negligence, but in presenting the case to the jury, abandoned the charge of contributory negligence, and submitted their defense by their instruction No. 5, which...