Collins v. Fillingham
| Decision Date | 03 March 1908 |
| Parties | COLLINS, Respondent, v. FILLINGHAM, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jno. W. McElhinney Judge.
AFFIRMED.
STATEMENT.--In the year 1905, defendant owned premises No. 1809-1811 fronting east on North Ninth street, in the city of St Louis. Number 1809 is a two-story structure. The first floor is used as a storeroom and the second story is fitted up for residence purposes. Number 1811 is a one-story house with a flat roof. An alley about three feet wide and paved with brick separates the two buildings. Access to the second story of No. 1809 is gained by a narrow stairway built in the west end of the alley. The stairway lands on a porch running along the north side of the entire building. Doors into the kitchen and other rooms on the second floor open on this porch. The east end of the porch extends over and on to the flat roof on No. 1811, and the porch and roof are fenced in by a balustrade. Posts are fastened at the corners of the roof from which the tenant of 1809 may string clothes lines for the purpose of drying clothes. Birdie Collins, a widow with a family of small children, rented the second story of No. 1809 from defendant, in February, 1905, and moved into the premises about the middle of the month and continued to occupy them until after July of the same year. On July 13th plaintiff, then eight years of age, fell from the porch running along the north side of No. 1809 to the paved alley, inflicting a deep would in her head. The action is to recover for this injury and is brought by plaintiff by and through Birdie Collins as her next friend.
The gist of the petition is that the balustrade of the porch was rotten and unsafe when Mrs. Collins moved into the premises and defendant at the time, through his agent, who leased the premises to Mrs. Collins, agreed to make repairs and put the premises in a safe condition, but neglected and refused to repair the balustrade though often requested to do so by Mrs. Collins (the tenant); that while plaintiff was playing "I Spy" with other children on the porch and roof, she leaned against the balustrade and, on account of its rotten and unsafe condition, it gave way causing her to fall to the alley, resulting in serious and permanent injury to her. The answer admitted that defendant was the owner of the premises and that Mrs. Collins occupied them as his tenant, but denied every other allegation in the petition. The jury found the issues for plaintiff and assessed her damages at $ 1,500. After taking the necessary preliminary steps to preserve his exceptions defendant appealed.
Judgment affirmed.
J. A. McKeag for appellant.
(1) The verdict is so wholly unsupported by the evidence that it is manifestly the result of passion and prejudice on the part of the jury. It is one of those unaccountable cases where the jury is moved to its conclusion by some motive not found in the evidence, and in the interest of justice and for the protection of personal rights, the appellate court must consider the evidence. This is not a case of conflict of evidence but one of total want of evidence to sustain the verdict. Payne v. Railroad, 136 Mo. 562; Moore v. Hutchinson, 69 Mo. 429; Spiro v. Transit Co., 102 Mo.App. 250; Spohn v. Railroad, 87 Mo. 74; Gage v. Trawick, 94 Mo.App. 307; Cook v. Railroad, 94 Mo.App. 417. (2) Under general denial may be proven any fact the effect of which is to show that an essential statement in plaintiff's cause of action is untrue. Negligence or other act of third person, not agent of defendant, may be shown. It was error, therefore, for the court to exclude evidence offered by defendant tending to show that even if the plaintiff was injured by falling from the roof, such injury was in no way connected with or caused by any act of defendant, but was caused by negligence or other conduct of plaintiff's mother. Bolton v. Railroad, 172 Mo. 92; Cousins v. Railroad, 66 Mo. 572; Young v. Kansas City, 27 Mo.App. 101; Pomroy's Rem. and Rem. Rights (4 Ed.), sec. 551.
M. Hartmann and R. L. Shakelford for respondent.
There is no merit in defendant's second contention. Contributory negligence is a matter of affirmative defense that must be set up in the pleadings in addition to the general denial filed by defendant. Taylor v. Railroad, 26 Mo.App. 336; Voegeli v. Pickel, 49 Mo.App. 643; Hughes v. Railroad, 127 Mo. 453; Duffy v. Transit Co., 104 Mo.App. 242.
BLAND, P. J. (after stating the facts).
--1. At the close of all the evidence defendant moved the court to instruct the jury to find for him. The refusal to give this instruction is assigned as error. Plaintiff's evidence shows that she fell from near the east end of the porch to the paved alley and was seriously injured; that two pieces of the balustrade were picked up in the alley where plaintiff fell and were found to be so rotten and decayed that they had pulled from the nails. Mrs. Collins testified that defendant's agent having the property in charge, and who rented the premises to her, agreed at the time to repair the balustrade of the porch and put the premises in good condition before she moved in; that some repairs were made to the locks and doors in the kitchen and some window glass put in, but no repairs whatever were made to the balustrade of the porch. She also testified that on the payment of each monthly installment of rent, up to and including June, 1905 she verbally notified defendant's agent of the unsafe condition of the balustrade and requested that it be repaired and, at the agent's request, she gave them written notice of the unsafe condition of the balustrade and requested repairs, but that no heed was paid to her complaint and no repairs made. Defendant's evidence tends to show that in January, 1905, and before Mrs. Collins moved into the premises, they were thoroughly overhauled by a carpenter employed by defendant and the premises including the balustrade, were put in a good tenantable condition. The carpenter who made the repairs testified that he left the balustrade in a safe condition and that he removed all rotten boards therefrom and put in new ones. Defendant's evidence also tends to show that Mrs. Collins at no time, either verbally or in writing, made any complaint of the condition of the balustrade, or notified defendant or his agent to repair it. Defendant contends that he was under no obligation to Mrs. Collins to make repairs. This might be so but for plaintiff's...
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