Dietz v. Magill

• Decision Date: 04 May 1937
• Docket Number: No. 24090.,24090.
• Citation: 104 S.W.2d 707
• Parties: DIETZ v. MAGILL.
• Court: Missouri Court of Appeals

104 S.W.2d 707

DIETZ v. MAGILL.

No. 24090.

St. Louis Court of Appeals. Missouri.

May 4, 1937.

Rehearing Denied May 18, 1937.

Appeal from St. Louis Circuit Court; J. W. McAfee, Judge.

"Not to be published in State Reports."

Action by Otto Dietz against Harry Magill, doing business as Bevo Mill Restaurant. From the judgment, the plaintiff appeals.

Affirmed.

Maurice P. Phillips, of St. Louis, for appellant.

Moser, Marsalek & Dearing, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff when he fell upon a stairway leading down from the first floor into the basement of defendant's restaurant, which is commonly known as Bevo Mill, and is located at the intersection of Morganford and Gravois roads, in the city of St. Louis. Upon a trial of the issues there was a verdict of nine jurors in favor of defendant; and from the judgment entered, following an unavailing motion for a new trial, plaintiff has duly perfected his appeal to this court.

It seems that the restaurant is not customarily opened to the general public until 11 o'clock or thereabouts in the morning, though so far as the employees are concerned, the kitchen force reports for duty at 6:30 o'clock, and the waiters and cashier about 9 o'clock. In other words, the first meal for which the restaurant makes preparation in the usual course of business is the noonday luncheon, though breakfast is also served "by special appointment," which means that if a properly appearing person presents himself at the restaurant at other than the regular hours, he will be allowed to enter, and the waiters will be permitted to serve him.

On the morning in question plaintiff went to the restaurant for breakfast between 9 and 10 o'clock, and was admitted into the premises by a woman employee who was engaged at the moment in cleaning the glass in the two doors on the Morganford side, and had the doors unlocked for that purpose. He sat down at one of the tables, and gave his order to a waiter for a cup of coffee which he drank as soon as it was served to him.

Plaintiff then gave the waiter a further order which would require some little time to prepare, and at this point decided to pay a visit to the wash room, which was located in the basement. As a matter of fact, there was a more convenient wash room located nearby on the main floor, but plaintiff did not know of it, and was only aware of the wash room in the basement which he had used on the two previous occasions that he had patronized the restaurant. Whether he had told the waiter of his intention to go to the wash room was a matter of dispute in the evidence, plaintiff's own testimony being that he did tell the waiter of his desire, while the latter's testimony was that while busying himself around the dining room he had merely observed plaintiff rise and leave the table, and had only learned of plaintiff's fall upon the stairway after plaintiff returned from the basement and reported the occurrence to him.

The stairway in question leads down into the basement from a point near the Morganford entrance, and consists of fifteen steps, each of which is 7 inches in height and 12 inches in depth. Attached to the wall on either side of the stairway, which is 4 feet 6 inches in width, is a handrail which does not go to the full length of the stairway, but terminates at the basement wall, beyond which two of the steps extend before the floor of the basement is reached. In other words, one going down the stairway into the basement has the benefit of a handrail until the basement wall is reached, but from that point on he must walk down the last two steps unassisted by a handrail until he reaches the floor, where he may turn and enter the wash room, which is located just to the right of the foot of the stairs.

Plaintiff, who is himself a builder and contractor, testified that the common practice in constructing stairways with handrails is to have the handrail begin with the first step and terminate with the last step, so that one using the stairway, and permitting his hand to run along the railing, would have the right to conclude, upon coming to the end of the railing, that he had reached the bottom of the stairway, and that his next step would put him out upon the floor to which the stairway led. In view of the verdict for defendant, we are, of course, not presently concerned with the question of whether plaintiff made out a submissible case upon the issue of defendant's negligence, if any, in the mode of construction of the stairway, but his testimony regarding the common usage of builders in such respect is nevertheless not without its importance as tending to be explanatory of the character of the surroundings at the point on defendant's premises where plaintiff fell and was injured.

The switch which controlled the lights over the stairway was located on the basement wall at the foot and to the left of the stairway. The lights were customarily turned on each morning when the restaurant was thrown open to the general public, but because of the early hour of plaintiff's arrival they had not yet been turned on at the time he attempted to use the stairway in going downstairs to the wash room. Plaintiff testified that on the occasion in question it became darker and darker as he went down the stairs, until by the time he came to the third from the last step at the end of the handrail he was unable to see the steps which still lay ahead of him. Opposed to this was the evidence from defendant's own side of the case, that even without the electric lights being turned on one could still see all the way to the bottom of the stairway from the daylight that came in through the glass in the doors at the Morganford entrance to the restaurant.

The only eyewitness of plaintiff's fall was a Mrs. Sidel, the woman who had originally admitted him into the premises. She testified that as she observed plaintiff start down the stairway, she followed after him and offered to turn on the lights, but that his reply was that he had been in the place before and did not need the light. Plaintiff denied any such conversation with Mrs. Sidel, and at any rate he went down the stairway without the lights being on, and when he came to or opposite the point where the handrail ended, mistakenly stepped out into space, and fell and received the injuries for which he has sued in this action.

Mrs. Sidel testified that plaintiff was not using the handrail as he went down the stairway, while his own testimony was, not only that he had his hand on the railing, but that as he felt the railing come to an end at the basement wall he was led to conclude that he was then on the last step, and consequently stepped out with the intention of turning and going into the wash room. He testified further that on the two previous occasions that he had used the stairway the lights had been on, so that he had had no particular reason to take notice of the unusual construction of the stairway and handrails alongside of it.

Plaintiff's theory of the case, as embodied in his principal instruction No. 2, was "that plaintiff was on said occasion exercising ordinary care for his own safety, and that the design and construction of said handrail in so ending above the bottom of said stairway was unusual, improper, and dangerous, and not reasonably safe for use by persons descending said stairway, and that defendant knew, or in the exercise of ordinary care would have known, that said handrail was in said particular improper, dangerous, and not reasonably safe for use by such persons, and failed to furnish adequate light so that under ordinary circumstances persons using said handrail could see that the same terminated above the landing at the bottom of said stairs, and that the maintenance by the defendant of said handrail under such circumstances and without adequate light to disclose the condition thereof to its users * * * was negligence on the part of the defendant."

While plaintiff in his assignment of errors has taken exception to each and every instruction given for defendant, we gather from his brief and argument that his actual complaint goes only to defendant's instructions Nos. 4, 7, and 9, which were as follows:

"4. The court instructs the jury that the burden is upon the plaintiff to prove his case to your reasonable satisfaction, by the greater weight or preponderance of the credible evidence. If he has failed to so prove his case, then under the law the plaintiff is not entitled to recover, and your verdict must be in favor of the defendant."

"7. The court instructs the jury that if you believe and find from the evidence that on the occasion mentioned in evidence an employe of the defendant offered to turn on the lights for plaintiff, as plaintiff was descending the stairway, but that the plaintiff declined said offer, and voluntarily chose to descend said stairway without artificial light, then the court instructs you that the plaintiff assumed whatever, if any, risk arose from the lack of such artificial light, and that plaintiff is not entitled to recover against the defendant on account of any alleged lack of light on said stairway."

"9. The court instructs the jury that if you...