Darlington v. Railway Exchange Bldg., Inc.

• Decision Date: 09 October 1944
• Docket Number: No. 38983.,38983.
• Citation: 183 S.W.2d 101
• Parties: A.P. DARLINGTON v. RAILWAY EXCHANGE BUILDING, INC., a Corporation, Appellant.
• Court: Missouri Supreme Court

183 S.W.2d 101

A.P. DARLINGTON v. RAILWAY EXCHANGE BUILDING, INC., a Corporation, Appellant.

No. 38983.

Supreme Court of Missouri.

Division Two, October 9, 1944.

Rehearing Denied or Motion to Transfer to Banc Overruled, November 13, 1944.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert J. Kirkwood, Judge.

AFFIRMED (subject to remittitur).

Joseph N. Hassett and Ernest E. Baker for appellant.

(1) Defendant provided elevators and lighted hallways for persons having business in its building to go in and out and from floor to floor therein, and it owed no duty to plaintiff to maintain the fire escape stairway in the building in reasonably safe condition for his use in going from floor to floor in the building. Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Menteer v. Scalzo Fruit Co., 240 Mo. 177, 144 S.W. 833; Watson v. St. Joseph Coal Co., 331 Mo. 475, 53 S.W. (2d) 895; Boneau v. Swift & Co., 66 S.W. (2d) 172; Philbert v. Benjamin Ansehl Co., 119 S.W. (2d) 797; Murphy v. Fred Wolferman Co., 148 S.W. (2d) 481; Barry v. Calvary Cemetery, 106 Mo. App. 358, 80 S.W. 709; Shaw v. Goldman, 116 Mo. App. 332, 92 S.W. 165; Shuck v. Security Realty Co., 201 S.W. 559; Harakas v. Dickie, 224 Mo. App. 171, 23 S.W. (2d) 651; Ducoulombier v. Baldwin, 101 S.W. (2d) 96. (2) Plaintiff could not show a duty on defendant's part to exercise ordinary care to keep the fire escape in a reasonably safe condition or enlarge his invitation by showing some other persons unknown to plaintiff had used the stairway to go from floor to floor in the building. Glaser v. Rothschild, 221 Mo. 180; Boneau v. Swift & Co., 66 S.W. (2d) 172; Ducoulombier v. Baldwin, 101 S.W. (2d) 96; Wright v. Kansas City Structural Steel Co., 157 S.W. (2d) 582. (3) Passive acquiescence of defendant in the use by some tenants in its building of the stairway in question did not create any duty on defendant's part to maintain the stairway in reasonably safe condition. Straub v. Soderer, 53 Mo. l.c. 42; Moore v. Railroad, 80 Mo. 485; Butler v. Railroad, 155 Mo. App. 296. (4) The darkened condition of the stairway was obvious or known to plaintiff, and the danger of stepping into the descending stairway was known to him, and he cannot recover against defendant for injuries caused thereby. Paubel v. Hitz, 339 Mo. 274, 96 S.W. (2d) 369; Burnison v. Souders, 225 Mo. App. 1159, 35 S.W. (2d) 619. (5) There was no duty on the landlord to light the fire escape stairway in question. Lambert v. Jones, 339 Mo. 677, 98 S.W. (2d) 752; Barber v. Kellogg, 123 S.W. (2d) 100. (6) Plaintiff voluntarily used the darkened fire escape stairway to go from floor to floor in the building, and elected not to use the lighted hallways and elevator service provided by defendant for that purpose, and he assumed or incurred the risk or danger of injury thereby as a matter of law. Stein v. Battenfield Oil & Grease Co., 39 S.W. (2d) 345; Dietz v. Magill, 104 S.W. (2d) 707. (7) Plaintiff was guilty of contributory negligence as a matter of law in walking into the fire escape stairway when it was dark, and when he knew there was a stairway in the stairway well and had no information or knowledge as to where the stairway was located. Marshall v. United Rys. Co., 209 S.W. 931; Bonanomi v. Purcell, 230 S.W. 120; Keeter v. Devoe & Reynolds, 93 S.W. (2d) 677; Senseney v. Landay Realty Co., 131 S.W. (2d) 595; Fabel v. Boehmer Realty Co., 227 S.W. 858; Cox v. Bondurant, 200 Mo. App. 948, 7 S.W. (2d) 406; Gray v. Levy, 48 S.W. (2d) 20; Boland v. Thomson, 142 S.W. (2d) 790. (8) There was no causal connection between the negligence charged in the petition and submitted to the jury and the injuries sustained by plaintiff. Marshall v. United Rys. Co., 209 S.W. 931; Mayfield v. Kansas City So. Ry., 337 Mo. 79, 85 S.W. (2d) 116; Kimberling v. Wabash Railroad Co., 337 Mo. 702, 85 S.W. (2d) 736. (9) It was prejudicial error to submit to the jury that plaintiff could recover if there was a use of the stairway in question by tenants of defendant, where the evidence failed to show that plaintiff knew of such use Glaser v. Rothschild, 221 Mo. 180; Wright v. Kansas City Structural Steel Co., 157 S.W. (2d) 582. (10) It was prejudicial error for plaintiff's Instruction 1 to base plaintiff's right to recover upon use of the stairway by some tenants of defendant, without requiring the jury to find that there was a customary use known to defendant. Straub v. Soderer, 53 Mo. l.c. 42; Glaser v. Rothschild, 221 Mo. 180. (11) Plaintiff's instruction 1 assumed essential, controverted facts in the case without requiring the jury to find the existence of those facts, and this was prejudicial error. Taylor v. Kansas City, 112 S.W. (2d) 562. (12) Where plaintiff chose to use a stairway which he knew or should have known was in a darkened condition, not knowing where the stairs were located in the stairway well, and refused and neglected to use a safe means of going from floor to floor in the building, he assumed or incurred the risk or danger of injury therefrom, and such issue should have been submitted to the jury by defendant's requested instruction marked "A", which was refused by the court. Stein v. Battenfield Oil & Grease Co., 39 S.W. (2d) 345; Dietz v. Magill, 104 S.W. (2d) 707. (13) The verdict was excessive as a result of prejudice and passion on the part of the jury. Jenkins v. Mo. State Life Ins. Co., 334 Mo. 941, 69 S.W. (2d) 666; Grange v. Chicago & East Illinois Railroad, 69 S.W. (2d) 955; Tash v. St. Louis-S.F. Ry. Co., 76 S.W. (2d) 960.

Russell J. Horsefield, Wilbur C. Schwartz and C.O. Inman for respondent.

(1) Defendant owed a duty to provide artificial light to illuminate the stairway in question because: Horvath v. Chestnut St. Realty Co., 144 S.W. (2d) 165; Philibert v. Benj. Ansehl Co., 342 Mo. 1239, 119 S.W. (2d) 797; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1; Watson v. St. Joseph Coal Mining Co., 331 Mo. 475, 53 S.W. (2d) 895; Brody v. Cudahy Packing Co., 233 Mo. App. 973, 127 S.W. (2d) 7; Murphy v. Fred Wolferman, Inc., 347 Mo. 634, 148 S.W. (2d) 481; Dalzell v. Dean Hotel Co., 193 Mo. App. 379, 186 S.W. 41; Burnison v. Souders, 225 Mo. App. 1159, 35 S.W. (2d) 619. (2) It is immaterial whether plaintiff knew of the customary use of the stairway as he was an invitee in the building and accompanying another tenant who knew of and engaged in such customary use. (3) The peculiar construction of the stairway created a condition of unusual danger, a trap or pitfall. By reason of said dangerous condition it was for the jury to say whether or not in the exercise of ordinary care to keep the stairway reasonably safe artificial light should have been furnished. Oakley v. Richards, 275 Mo. 266, 204 S.W. 505; Wilson v. Jones, 182 S.W. 756; Petera v. Railway Exchange Bldg., 42 S.W. (2d) 947; Kratz v. Kinney, 41 S.W. (2d) 954; McFarland v. Sears-Roebuck & Co., 91 S.W. (2d) 615; Winters v. Hussenbusch, 89 S.W. (2d) 546; Feucht v. Parkview Amusement Co., 60 S.W. (2d) 663; Cannon v. Kresge Co., 232 Mo. App. 173, 116 S.W. (2d) 559; Sherman v. Alexander & Sons, 108 S.W. (2d) 616; McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 226. (4) The evidence showed that in the original construction wiring and light fixtures were installed over the stairway in question; that defendant had undertaken and assumed the duty of providing artificial light, but discontinued the performance of the duty without notice to the tenants. Such assumption of duty bound defendant to the exercise of ordinary care in the continuous performance of it. This is true even in the absence of any statute or ordinance requiring the maintenance of lights. Barber v. Kellogg, 123 S.W. (2d) 100; Lambert v. Jones, 339 Mo. 677, 98 S.W. (2d) 752; Lowery v. Kansas City, 337 Mo. 47, 85 S.W. (2d) 104; Taylor v. Prudential Ins. Co., 234 Mo. App. 317, 131 S.W. (2d) 226; Gentili v. Dimaria, 89 S.W. (2d) 93. (5) Plaintiff was not guilty of contributory negligence as a matter of law. It is not negligence as a matter of law to enter darkened premises where the situation is not such as to threaten immediate danger so that no one of ordinary prudence would enter it. Gentili v. Dimaria, 89 S.W. (2d) 93; Eaton v. Wallace, 287 S.W. 614; Monsour v. Excelsior Tobacco Co., 115 S.W. (2d) 219; McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 226; Kratz v. Kinney, 41 S.W. 954; Wilson v. Jones, 182 S.W. 756; Duff v. Eichler, 336 Mo. 1164, 82 S.W. (2d) 881; Dewey v. Kline's, 229 Mo. App. 1079, 86 S.W. (2d) 622; English v. Sahlender, 47 S.W. (2d) 150. (6) Assumption of risk is not available as a defense in this case because it is not pleaded. Patrum v. St. L.-S.F. Ry. Co., 259 Mo. 109, 168 S.W. 622; Halt v. C., C., C. & St. L. Ry. Co., 279 S.W. 148; Adams v. Q., O. & K.C.R. Co., 287 Mo. 535, 229 S.W. 790. (7) It is ordinarily confined to the relation of master and servant, which does not exist in this case. Huckleberry v. Mo. Pac. R. Co., 324 Mo. 1025, 26 S.W. (2d) 980; August Vierman Brick Co. v. St. L. Contracting Co., 335 Mo. 534, 73 S.W. (2d) 734. (8) One cannot be held to assume the risk of injury unless both the defect and danger are known and appreciated by him or unless both are so obvious that one of ordinary prudence in his situation is bound to know and appreciate them. Plaintiff was not obliged to look for danger, but could act on the assumption that defendant had exercised ordinary care for his safety. Vaughan v. St. L., M.B.T. Ry. Co., 322 Mo. 980, 18 S.W. (2d) 62; State ex rel. St. L.-S.F. Ry. Co. v. Cox, 329 Mo. 292, 46 S.W. (2d) 849. (9) Instruction A, on assumption of risk, was properly refused because the defense was not pleaded and the evidence did not support the defense. The instruction did not require a finding that plaintiff knew and appreciated the danger or that the danger was open and obvious. (10) The absence of light was the proximate cause of plaintiff's fall. Messing v. Judge & Dolph Drug Co., 322 Mo. 901...