Coats v. Sandhofer, 21658
| Decision Date | 07 April 1952 |
| Docket Number | No. 21658,21658 |
| Citation | 248 S.W.2d 455 |
| Parties | COATS v. SANDHOFER. |
| Court | Missouri Court of Appeals |
Rufus Burrus, James L. Gillham, Independence, for appellant.
C. R. Leslie, Independence, Arthur C. Popham, Sam Mandell, Kansas City, for respondent.
The defendant appeals from a judgment of $3,000 rendered against her for personal injuries sustained by plaintiff because of a fall on a board walk provided by defendant for common use by the tenants of a certain building owned by defendant.
The petition alleged that plaintiff was one of three tenants living in an apartment building owned and controlled by the defendant; that the defendant had carelessly and negligently failed to maintain properly a certain board walk leading from a concrete porch at the rear of her apartment; that it was commonly used by all of the tenants in said building; that the same had become bedly worn, rotten, decayed and soft, and constituted a dangerous hazard; and that defendant knew of such condition in time to have remedied the same, but negligently failed to do so. The answer consisted of a general denial and an allegation that plaintiff's negligence was the sole cause of the injury.
A jury was waived and the cause tried before the court. Under these circumstances, we will review the case upon both the law and the evidence as in suits of an equitable nature. The judgment will not be set aside unless clearly erroneous, and due regard will be given to the opportunity of the trial court to judge of the credibility of the witnesses. The court's finding on issues of fact will not be disturbed by this court unless clearly erroneous. Cosentino v. Heffelfinger, 360 Mo. 535, 229 S.W.2d 546, 549; In re Diehl's Estate, Mo.App., 239 S.W.2d 523, 526.
The defendant urges on this appeal that (a) the court erred in finding that the board walk was dangerously defective and not reasonably safe; (b) erred in not finding that plaintiff's negligence was the sole cause of her injuries; and (c) erred in not finding that she was guilty of contributory negligence, as a matter of law.
The record discloses that defendant owned a two-story apartment building located in Independence, Missouri; that she rented one of the apartments to the plaintiff and her husband in March, 1949; that the apartment consisted of 3 rooms and was situated in the rear of the building; that the entrance was by way of a door from a concrete porch, without roof or railing; that the floor of the porch was about 1 foot above ground level; that there was a bathroom located on the south side of the building which was used in common by all the tenants; that there was a plankway extending from the south edge of the porch approximately 4 feet, at which point it connected with another plankway parallel to the south side of the house and leading to the bathroom; that the plankway was used by all the tenants in going to and from the bathroom. Originally the plankway leading from the porch consisted of 2 boards, each approximately 7 inches wide, placed side by side on the ground, but at the time of the accident one of the boards was, for all practicable purposes, rotted away and most of it had been removed by defendant's agent. The remaining board was only 6 1/2 inches wide, was rotten, soft and spongy for about 11 inches from the end next to the porch, and at the time of the accident was somewhat submerged in mud. It is filed in this court as an exhibit, and we have inspected it. On December 30, 1949, at about 7:00 a. m., plaintiff, enroute to the bathroom, walked from her apartment onto the concrete porch and stepped from the porch onto the above described board, and the heel of her shoe became embedded in the decayed portion of the board, which caused her to fall and received the injuries complained of.
In describing the board and the cause of her fall, plaintiff testified:
* * *
* * *
* * *
'
* * *
' * * *
'
* * *
'
'
'
'
Plaintiff's husband testified that he had notified the defendant and her agent of the defective condition of the walk two or three months before plaintiff was injured.
Defendant consedes that, under the facts in this case, it was her duty to keep the plankway 'in a reasonably safe condition'. Morelock v. De Graw, 234 Mo.App. 303, 112 S.W.2d 126, 130, 131; Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263; Brewer v. Silverstein, Mo.Sup., 64 S.W.2d 289. Her contention is that the evidence does not show that the condition was dangerous and unsafe. We cannot agree. Without rehashing the evidence, we have no hesitancy in holding that the trial court's finding that the board was dangerous and unsafe, is supported by substantial evidence.
Defendant next argues that plaintiff's injuries resulted from her sole negligence in that she knew the dangerous condition of the plank and did not step as far as she intended to. There is no authority cited to support this argument and we find none. We think this is a fact to be taken into consideration in deciding defendant's principal contention that plaintiff was guilty of contributory negligence, as a matter of law. While contributory negligence was not pleaded, nevertheless it has been uniformly held that if a plaintiff's own evidence shows her guilty of contributory negligence, then she destroys her own cause of action and cannot recover even though defendant has not pleaded such defense. Hale v. Kansas City, 239 Mo.App. 12, 187 S.W.2d 31, 38; Lanio v. Kansas City Public Service Co., Mo.Sup., 162 S.W.2d 862, 868.
The argument that plaintiff was...
To continue reading
Request your trial
-
Hedgcorth v. Missouri Pac. R. Co.
...287(1) (banc 1954); Peoples Finance Corporation v. Buckner, 344 Mo. 347, 350, 126 S.W.2d 301, 302-303(3) (1939); Coats v. Sandhofer, 248 S.W.2d 455, 457-458(4) (Mo.App.1952); 88 C.J.S. Trial § 258(d) (1955). I concur because in my view the plaintiff's evidence conclusively establishes his a......
-
Walker v. Niemeyer, 50431
...person would have done as the injured party did, the issue of contributory negligence is one for the jury.' And see Coats v. Sandhofer, Mo.App., 248 S.W.2d 455, 458[5, 6]. In ruling appellants' contention that the trial court erred in overruling defendant's motion for a directed verdict, we......
-
Coplen v. Zimmerman
...use it, providing due care is exercised in view of the hazard. Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263; Coats v. Sandhofer, Mo.App., 248 S.W.2d 455; Hill v. Bilinsky, Mo. App., 61 S.W.2d 266; Bartlett v. Taylor, supra; O'Neill v. Sherrill, supra. In view of these rules and ......
-
Gaines v. Schneider
...that he can safely do so with the exercise of care. Roman v. King, supra; Brewer v. Silverstein, Mo., 64 S.W.2d 289; Coats v. Sandhofer, Mo.App., 248 S.W.2d 455. Unless the defective condition is so open, obvious and dangerous (what is described in some cases as 'glaringly dangerous') that ......