Burks v. Buckmiller, 30802
| Decision Date | 19 September 1961 |
| Docket Number | No. 30802,30802 |
| Citation | 349 S.W.2d 409 |
| Parties | Fanny M. BURKS, (Plaintiff) Appellant, v. Elmer L. BUCKMILLER and Hettie I. Buckmiller, (Defendants) Respondents. |
| Court | Missouri Court of Appeals |
Val Terschluse, St. Louis, for appellant.
Rene J. Lusser, Lusser, Morris & Burns, St. Louis, for respondents.
This is an action for damages sustained by reason of personal injuries that the plaintiff suffered when she fell while descending an unlighted stairway. The defendants are the landlords of the premises where the plaintiff fell while she was visiting the tenants. There was a verdict and judgment for the defendants. After a timely motion for a new trial filed by the plaintiff was overruled, the plaintiff appealed.
In August of 1956 the defendants purchased a two-family flat at 4007 North Eleventh Street in the City of St. Louis. At that time the tenants of the upper flat (4007-a) were Mr. and Mrs. George Dockery, and they continued as tenants of the defendants. Access to their flat was from an entrance on the south side of the building, and the stairs led upward from this entrance serving only the portion of the building occupied by the Dockerys.
The stairway was lighted from a one-bulb light fixture which was attached to the ceiling at the top of the stairs. The fixture was fastened flush with the ceiling and accommodated a bulb from an exposed socket. It was wired so that it could be turned on at both the bottom and the top of the stairs. At night when the light was not on, the stairway was so dark that one would have to feel his way down.
At some time in September, bulbs placed in the fixture by Mrs. Dockery started burning out, and toward the middle of September it stopped functioning.
Mrs. Dockery mentioned the matter to the landlord, Mr. Buckmiller, shortly thereafter while he was working in the yard. He came into the flat to see about it. He borrowed a table and a chair from Mrs. Dockery, and standing upon these he put in a new light bulb given him by Mrs. Dockery. It did not light, so he borrowed a screw driver from Mrs. Dockery and loosened the fixture from the ceiling. This dropped the fixture four or five inches and left it suspended by the electric wires. After he was there about ten or fifteen minutes he said that he could not fix it himself and that he would have to get an electrician. Mrs. Dockery concluded that there was something wrong with the switch since he could not fix it. He left the fixture suspended by the wires, and it was in that condition and still not operating on January 8, 1957, which is the date of the occurrence mentioned in this action.
The plaintiff, Mrs. Burks, was a sister-in-law of Mrs. Dockery. She visited Mrs. Dockery from two to four times a week during the fall of 1956 and in January of 1957. For at least three months prior to January 8 the hall was not lighted, and she went up and down the steps to and from the apartment in the dark. She said that she had gone up and down the stairs dozens of times in the dark. On the night of January 8, at about eight o'clock, she went with her husband to Dockerys' flat for the purpose of taking another sister-in-law living there to a doctor. She went up in the dark, and about ten minutes later came down in the dark with her sister-in-law, and they went as planned to see a doctor. They returned around nine o'clock, and again the plaintiff went up the dark stairs. The plaintiff and her husband started to leave shortly thereafter, with the plaintiff preceding her husband down the stairs. She testified that she was holding on to the bannister as she descended, but that after she had gone down five or six steps she 'fell or missed a step'. She fell three or four steps and ended sitting on her left foot. Her ankle was broken by the fall.
The landlord testified by deposition that he looked at the light and saw that the wire was loose, after which he told Mrs. Dockery that he would get an electrician to fix it for her.
The case was submitted to the jury upon the theory that the landlord attemped to repair the light fixture and negligently left it in a defective condition. As stated, there was a verdict for the defendants, and the plaintiff prosecutes this appeal.
Five of the eight points raised by the appellant go to alleged errors in instructions given. The defendants upon trial moved for a directed verdict at the close of the plaintiff's case and at the close of all of the evidence. Here they assert again that the plaintiff failed to make a submissible case. It is clear that if the evidence presented was insufficient to make a case properly submissible to a jury, it is of no importance that the instructions to the jury were good or bad, for there would be nothing for the jury to properly pass upon. Howard v. Johnoff Restaurant Company, Mo.Supp., 312 S.W.2d 55; O'Dell v. Dean, 356 Mo. 861, 204 S.W.2d 248; Komeshak v. Missouri Petroleum Products Co., Mo.App., 314 S.W.2d 263.
We consequently consider the question of whether or not the facts presented were sufficient in law to support a finding for the plaintiff. It is axiomatic that in passing upon this, we view the...
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