English v. Sahlender

• Citation: 47 S.W.2d 150
• Decision Date: 08 March 1932
• Docket Number: No. 21890.,21890.
• Court: Court of Appeal of Missouri (US)
• Parties: ENGLISH v. SAHLENDER.

47 S.W.2d 150

ENGLISH v. SAHLENDER.

No. 21890.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Mary English against Dr. Otto Sahlender. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Allen, Moser & Marsalek, of St. Louis, for appellant.

John J. Nangle, George Gantner, and J. F. Sloan, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, the extent of which is not in issue. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $3,500; and from the judgment rendered, defendant has duly appealed.

The defendant is Dr. Otto Sahlender, a practicing physician, with his office at 4906 Washington avenue, in the city of St. Louis. The plaintiff is Mary English, a widow, who was about sixty-three years of age at the time her injuries were received. Prior to the accident, she resided with her niece and was employed as a seamstress in a laundry, but since the fall of 1930 she has made her home with the Little Sisters of the Poor, on South Grand boulevard, in St. Louis.

The accident occurred on July 3, 1929, on the steps leading to the basement in the building in which defendant maintained his office. The building, which was located upon the south side of the street, had originally been erected as a residence; but defendant, upon acquiring it some years previously, had made certain changes in it so as to convert it into a combination office and residence. His living quarters were upon the upper floors, while on the first floor he had his reception hall, waiting room, private office, and operating room.

Plaintiff, who was suffering from heart and kidney trouble, had been a patient of defendant for about three years, and over that period of time had made from twenty-two to twenty-five calls at his office for treatment. She testified that the trouble with her kidneys made it necessary for her to visit the toilet quite frequently, and that in her several trips to defendant's office she had used his toilet about ten times.

The toilet was located along a narrow hall, which ran from north to south, and led towards the rear of the building from a door which opened out of the reception hall. Along the west side of the rear hall were three doors, the first opening upon the stairs which led to the second floor, the second to the stairs which led down into the basement, and the third into the toilet which was located towards the extreme end of the hall. Both the first and second doors opened out into the hall, while the door to the toilet room opened inwardly.

On the day in question plaintiff came to the office a little after 6 o'clock in the evening. She was told by the attendant or housekeeper that the doctor would not be in his office until 8 o'clock, and that she should meanwhile take a seat in the waiting room pending his return.

Shortly after her arrival at the office, plaintiff went back to the toilet; and a little after 7:30 o'clock she found it necessary to visit it a second time. The day was bright, and on the first visit plaintiff experienced no difficulty in finding her way. She testified, however, that at the time of the second visit the back of the hall was dark, and that the only light was the daylight which entered through the front door of the building, and thence filtered back to the hall in the rear. Though there was an electric light stationed above the door to the toilet, she stated that it was not burning on either occasion.

Plaintiff received her injuries in the course of the second visit. As she passed through the hall in the dusk or semidarkness, she came to the second door, which was the one that opened upon the steps leading down into the basement, and found it standing open. She had never had occasion to notice this door before, and thinking it was the door to the toilet, she walked into the opening, expecting thereafter to turn on the light inside the room. She testified that it was pitch dark beyond the doorway; that she could not see where she was walking; and that she did not hesitate in her course, or attempt to feel her way, her assumption being that it was the toilet room which she was entering.

So far as plaintiff herself knew, she simply stepped off into space; and when she regained consciousness some little time later, she found that she was lying upon a table in defendant's office, and that he and his attendant were administering to her. It was then that she learned from them that she had fallen down the basement steps. In the conversation which defendant had at that time with his attendant in plaintiff's hearing, he said: "I never pass that door without seeing it was locked." And the attendant replied: "It is my fault."

Other evidence in the case disclosed that the noise made by plaintiff's fall was heard by the attendant, and by the other patients who were sitting in the waiting room at the time; that they at once rushed back into the hall to see what had occurred; and that they found plaintiff lying on her back upon the landing, some eight or nine steps below the door.

Plaintiff testified that she had never before been in defendant's office after dark, or attempted to go to the toilet at that hour of the evening; and that on all other occasions when she had visited it, it had been in the daytime, or at least when there was sufficient light to enable her to see the arrangement that existed in the hall.

Generally speaking, defendant's evidence tended to show that the hall and basement had adequate light at the time in question to have enabled plaintiff to have seen where she was walking. However, plaintiff was corroborated and aided to a certain extent by the testimony of the housekeeper, who admitted that she had turned on a floor lamp in the waiting room about 7 o'clock, and that when she went back to the scene of the accident, and looked down into the basement where plaintiff was lying, she turned on the basement light so that she could see.

In endeavoring to show that there was ample light in the basement for plaintiff to have discovered where she was going, defendant made much of the fact that above the landing on which plaintiff fell there was a clear glass window, four feet two inches high, and two feet eight inches wide, the lower part of which was some two or three feet above the ground. It was shown, however, that the window opened or fronted on a passageway four or five feet in width, which ran between defendant's building and a two-story building which stood immediately to the west. It is quite natural to assume that the adjoining building shut out much of the light which might have otherwise entered through the window in question, and plaintiff's own testimony, if it was to be believed by the jury, completely negatived the idea that the window served to light the basement door or steps at that hour in the evening.

It was admitted that the records of the weather bureau disclosed that the sun had set on this particular evening at 7:30 o'clock.

The petition counted upon plaintiff's status as an invitee, and alleged negligence on the part of defendant in respect to his failure to have lighted the premises; to have guarded, locked, or barred the doorway leading to the basement; and to have warned plaintiff of such conditions and dangers, and the likelihood of injury thereby.

The answer was a general denial, coupled with a plea of contributory negligence to the effect that plaintiff, without observing where she was walking, stepped through the doorway leading to the basement, when she knew, or should have known, that such doorway was not the entrance to the toilet room, the location of which she knew, or should have known.

While the reply, if one was filed, does not appear of record, the case was tried upon the theory that the defense of contributory negligence was directly in issue.

The verdict, judgment, and appeal all followed in due course, as has been heretofore disclosed.

The matter of principal insistance on the part of defendant is that his requested peremptory instruction in the nature of a demurrer to all the evidence should have been given, his theory being in the first instance that the evidence showed no actionable negligence on his part, and that in any event plaintiff herself should be charged with contributory negligence as a matter of law.

That plaintiff was an invitee, and that the invitation extended to the use of the toilet on the premises, is not questioned; and consequently nothing additional need be said about her status, either generally, or at the particular moment her injuries were received.

The law of the case is well enough settled, and it is only the application of the law to the facts in evidence that is the cause for difficulty. Generally speaking, the rule is that the owner of premises is liable to an invitee, using due care, for an injury to him occasioned by the unsafe condition of the premises which is actually or constructively known to the owner but not to the invitee, which the owner has negligently suffered to exist, and of which the invitee has no knowledge or notice. In other words, the owner must exercise ordinary care to put and keep his premises in a reasonably safe condition for the purposes to be served or permitted by the invitation which he holds out to one with whom he hopes or expects to deal; failing in this, he must give notice of dangers which are known to him and unknown to the...