Coats v. Sandhofer, 21658

Decision Date07 April 1952
Docket NumberNo. 21658,21658
Citation248 S.W.2d 455
PartiesCOATS v. SANDHOFER.
CourtMissouri Court of Appeals

Rufus Burrus, James L. Gillham, Independence, for appellant.

C. R. Leslie, Independence, Arthur C. Popham, Sam Mandell, Kansas City, for respondent.

CAVE, Judge.

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:

'Q. Did you think it was dangerous? A. Well, naturally, a place like that you always try to be careful. * * *

'Q. Was it slippery? A. Yes, it would be; naturally, that time of year there is naturally dampness. * * *

'Q. * * * there was plenty of light for you to see from the street light? A. Yes. * * *

'Q. But as you came off with your left foot you intended to get over on the solid part of the board, you didn't intend to step on that (the decayed part)? A. No.

'Q. You intended to slip clear over on the solid part? A. Yes.

'Q. And you missed your step in some way and didn't get over that far? A. I didn't get over as far as I had been getting over in stepping down there. * * *

'Q. You didn't step off sideways? A. No, I just stepped off with my left foot like anybody would ordinarily step off. I knew that that bad place was there and I have always used precaution there about that bad place, so I didn't intend to step on that, but I hit that soft place and turned my ankle. * * *

'Q. You intended to step over on the good part of the board? A. Yes.

'Q. But you missed your step in some fashion, and your ankle turned, you say? A. Yes, there was a bad soft place right here at the edge of the board. * * *

'Q. Did the ball of your foot step on the solid part of the board? A. Yes, it seemed like my heel got in the soft part and turned my heel.

'Q. You were partly on the solid part with the ball of your foot, but the heel was in the soft portion? A. Yes, that soft place there was rotted.

'Q. You say you knew the condition of the board and had known it for some time? A. Yes, I knew I had to use precaution.

'Q. You knew you had to be careful about it? A. I tried to be careful.

'Q. You knew it was a dangerous place, as you told Mr. Etheridge (defendant's agent)? A. Yes, there was a possibility.

'Q. There wasn't anything you didn't know about it that anybody else would have known about it? A. No.

'Q. It was open and obvious to you? A. Yes, certainly.

'Q. And in plain view to you? A. Yes, and we had spoken to him about it. I wouldn't have spoken to him about it if I hand't known it was bad.'

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.

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