Ditsch v. K.C. Power & Light Co.

Decision Date08 May 1939
Docket NumberNo. 19458.,19458.
Citation128 S.W.2d 1055
PartiesOLGA A. DITSCH, RESPONDENT, v. KANSAS CITY POWER & LIGHT CO., APPELLANT.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Jackson County. Hon. Darius A. Brown, Judge.

AFFIRMED.

Johnson, Lucas, Landon, Graves & Fane for appellant.

(1) Plaintiff was not entitled to recover or have judgment against defendant on the pleadings and the evidence because (1) the negligence of plaintiff in not making sure or looking to see if the trapdoor was open or closed before she stepped into the pantry barred recovery by her, and because (2) the evidence disclosed no actionable negligence against defendant on account of the trapdoor being open. Keeter v. Devoe & Raynolds, Inc., 338 Mo. 978, 93 S.W. (2d) 677; State ex rel. Cox v. Trimble, 312 Mo. 322, 279 S.W. 60; Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120; Sodomka v. Cudahy Packing Co., 101 Neb. 446, 163 N.W. 809; Marshall v. United Railways Co. (Mo.), 209 S.W. 931; Gray v. Levy, 226 Mo. App. 991, 48 S.W. (2d) 20; Ballou v. Collamore, 160 Mass. 246, 35 N.E. 463; Taylor v. DuPont Bldg. Corp., 6 Boyce (29 Del.) 277, 99 Atl. 284; Evans v. Orttenburger, 242 Mich. 57, 217 N.W. 753; Silver v. Hause, 285 Pa. 166, 131 Atl. 668; Pentz v. Wetsman, 269 Mich. 496, 257 N.W. 735; Rice v. Goodspeed Real Estate Co., 254 Mich. 49, 235 N.W. 814; Swanson v. Schoenhofen Brewing Co., 215 Ill. App. 185; Shuck v. Security Realty Co. (Mo. App.), 201 S.W. 559; Convoy v. Osage Tribe No. 113 (Pa. Sup.), 135 Atl. 729; Hudson v. Church of Holy Trinity, 250 N.Y. 513, 166 N.E. 306; Medcroft v. Merchants Exchange (Cal. Sup.), 295 Pac. 822; Larned v. Vanderline, 165 Mich. 464, 131 N.W. 165; Heidland v. Sears, Roebuck & Co. (Mo. App.), 110 S.W. (2d) 795; Lynch v. C. & A., 208 Mo. 1, 106 S.W. 68.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondent.

(1) The evidence as to the issue of plaintiff's contributory negligence was properly submitted to the jury and its finding against defendant thereon is conclusive. O'Bauer v. Katz Drug Co. (Mo. App.), 49 S.W. (2d) 1065, 1073; Hartman v. Farmers' & Mechanics' Bank (Mo. App.), 208 S.W. 626, 627; Biondi v. Central Coal & Coke Co., 320 Mo. 1130, 9 S.W. (2d) 596, 597; McNatt v. Wabash Ry. Co., 341 Mo. 546, 108 S.W. (2d) 33, 39; Adelsberger v. Sheehy, 336 Mo. 497, 59 S.W. (2d) 644, 647; Cento v. Security Bldg. Co. (Mo.), 99 S.W. (2d) 1, 7; Slack v. Kansas City Gas Co., 120 S.W. (2d) 70, 73. (a) To look in this dark pantry was not to see the dark trapdoor opened against a wall of the same color. The issue of plaintiff's contributory negligence was for the jury. Howard v. S.C. Sacks, Inc. (Mo. App.), 76 S.W. (2d) 461, 465; Oliver v. Lynn Meat Co., 230 Mo. App. 1021, 93 S.W. (2d) 114, 117; Crockett v. City of Mexico, 336 Mo. 145, 77 S.W. (2d) 464, 467; Caley v. Kansas City, 226 Mo. App. 934, 48 S.W. (2d) 25, 30; McCloskey v. Salveter & Stewart Inv. Co., 317 Mo. 1156, 298 S.W. 226, 236; Gray v. City of Hannibal (Mo.), 29 S.W. (2d) 710, 713; English v. Sahlender (Mo. App.), 47 S.W. (2d) 150, 154; Hubenschmidt v. S.S. Kresge Co. (Mo. App.), 115 S.W. (2d) 211. (b) Plaintiff's evidence that she looked before she stepped into the pantry but could not see because of the darkness does not convict her of contributory negligence as a matter of law, but leaves the issue for the jury. Aiken v. Sidney Steel Scraper Co., 197 Mo. App. 673, 198 S.W. 1139, 1140; Katz v. North Kansas City Development Co. (Mo. App.), 14 S.W. (2d) 701, 708; Gentili v. Dimaria (Mo. App.), 89 S.W. (2d) 93, 95; Winters v. Hassenbusch (Mo. App.), 89 S.W. (2d) 546; Osborne v. Wells (Mo. App.), 211 S.W. 887. (c) Slack v. Kansas City Gas Company, 120 S.W. (2d) 70, is controlling. (2) The evidence disclosed actionable negligence on the part of the defendant in leaving the trapdoor open and the demurrer to the evidence requested by defendant was properly overruled. (a) The evidence shows defendant's meter reader, Holman, negligently left the trapdoor open. Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W. (2d) 311, 317; Frese v. Wells (Mo.), 40 S.W. (2d) 653, 654; Anderson v. Asphalt Distributing Co. (Mo.), 55 S.W. (2d) 688. (b) Leaving the trapdoor open in this dark pantry, in violation of his promise to close it, constituted actionable negligence on the part of defendant's meter reader, Holman. Slack v. Kansas City Gas Co. (Mo. App.), 120 S.W. (2d) 70; Osby v. Tarlton, 336 Mo. 1240, 85 S.W. (2d) 27, 30; Brown v. Terminal R.R. Assn. of St. Louis (Mo. App.), 85 S.W. (2d) 226, 233.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $3000, and defendant has appealed.

The facts show that plaintiff was injured on December 27, 1937, when she fell through a trapdoor in her residence in Kansas City, which door had been left open by a meter reader employed by the defendant. Plaintiff, at the time of her injury, was fifty-nine years of age. She had lived in the house for a great many years. It consisted of two stories, containing six rooms, a bath, two halls and a basement. It had three rooms on the first floor and three on the second. The house faced east. The kitchen was at the back. The kitchen was thirteen feet, eight inches east and west and eleven feet, three inches north and south. There was a window in the north and one in the west wall of the kitchen. There was a porch on the south side of the kitchen which had a door at its west end leading to the outside. There also was a door in the south wall of the kitchen leading to the porch, the upper half of which was glass. The porch was enclosed, two feet of the top being of glass, the remainder of wood. There were voile pin-dot curtains on the door and the windows of the kitchen. These curtains were red with rose colored dots. In addition to the curtains these openings had olive-green shades. There were two electric lights in the kitchen; one in the middle of the ceiling, which was operated by a switch on the east side of the wall between the kitchen door, leading to the front part of the house, and the pantry, and one over the sink on the south wall, which was operated by a pull chain. There was a pantry adjoining the kitchen to the east; the north wall of the pantry being on a line with the north wall of the kitchen. There was a solid wooden door leading from the kitchen into the pantry. This door opened toward the kitchen and, when open, it rested against the north wall of the kitchen. There was a "six foot" icebox standing against the north wall between the window in the kitchen and the pantry door. There was barely enough room between the icebox and the pantry for the door to open against the wall. This door was two feet, four inches wide. The pantry, itself, was two feet, four inches north and south and six feet east and west. The entire floor of the pantry consisted of a trapdoor which, when raised, permitted entry into the basement by means of a flight of steps. The place between the kitchen door and the west edge of the trapdoor consisted of only the width of a threshold board under the pantry door. The trapdoor opened from the south and against the north wall. The north wall of the pantry consisted of dark colored panel boards and were of the same color as the trapdoor. The stairway to the basement consisted of ten steps. There was a window on the north wall of the pantry two feet wide and four feet high. On this window there was an olive-green shade and a pink and white striped gingham curtain. The only artificial light in the pantry was an electric light located in the ceiling about the middle of the pantry. This light was operated by means of a drop-cord. In order to operate it, it was necessary for a person to take two or three steps out on the trapdoor. About five inches inside of the pantry, and on the south wall thereof, was a switch which operated the light in the basement. One could reach in and operate this switch without stepping upon the trapdoor. The plaintiff in going into the pantry for any purpose would not turn on the basement light for the reason that when the trapdoor was down it was of no aid in entering or using the pantry.

When plaintiff decided to go to the basement she would turn on the basement light first, then open the trapdoor. After she would turn on the basement light and open the trapdoor she could see the light from the basement and was enabled therefrom, alone, to tell that the trapdoor was open.

On the day of plaintiff's injury the sky was over-cast. No sunshine occurred in the daylight period. It was a cloudy, dreary and very dark day. The kitchen lights were not turned on during the morning. The window and door shades were drawn half way. About eleven o'clock of that morning plaintiff's sister came to visit her. About twenty minutes before twelve o'clock, noon, plaintiff went into the pantry to get a box of crackers and a can of soup for lunch for herself and sister. Plaintiff knew where the soup and crackers were so she did not turn on the pantry light when she went into get them. When standing on the threshold, preparing to enter the pantry, she could tell that the trapdoor was closed.

After procuring the soup and crackers, plaintiff and her sister sat at a small table in the center of the kitchen, eating lunch. Plaintiff sat on the south facing north and her sister was on the east facing west. About twenty minutes after plaintiff had been in the pantry and about 12 o'clock, noon, defendant's electric light meter reader, one Holman, came to the rear door. Plaintiff got up from the table, opened the door and let the meter reader in. She observed that he was not the regular meter reader and in response to his inquiry as to how to get to the basement, plaintiff pointed to the pantry door and he started toward it. Plaintiff testified: "When he opened the door he stood on the threshold. I said, `You will have to step back because that is a trapdoor. You will have to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT