Fabel v. Boehmer Realty Co.

• Decision Date: 08 February 1921
• Docket Number: No. 16248.,16248.
• Parties: FABEL v. BOEHMER REALTY CO.
• Court: Missouri Court of Appeals

227 S.W. 858

FABEL v. BOEHMER REALTY CO.

No. 16248.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

"Not to be officially published."

Action by Kate Fabel against the Boehmer Realty Company. From an order setting aside the verdict and judgment for plaintiff and granting defendant a new trial, plaintiff appeals. Affirmed.

J. F. Coyle and Charles E. Morrow, both of St. Louis, for appellant.

Bryan, Williams & Cave, of St. Louis, for respondent.

BECKER, J.

This is an appeal by plaintiff from an order setting aside the verdict and judgment in her favor and granting defendant a new trial.

Plaintiff below filed suit for damages for injuries alleged to have been sustained by her when a certain alleged defective step of a stairway leading into the basement in the rear of the premises occupied by her and her husband as tenants of the defendant gave way under her, causing her to fall. There was a trial to a jury, resulting in a verdict for plaintiff in the sum of $1,200. Thereafter the trial court sustained defendant's motion for a new trial on the ground that the court erred in refusing an instruction offered at the close of plaintiff's case, and again at the close of the entire case, to return a verdict in favor of the defendant.

It appears that the premises in question, which consisted of an upper and lower flat, were owned by defendant; that the plaintiff, together with her husband, occupied the upper flat. There was a basement to the building and a stairway in the rear of said building leading to it from the outside. The basement as well as this stairway were used in common by both tenants. There was an additional stairway leading into the basement from the side of the house for the use of the family using the upper apartment, namely, plaintiff, her husband and family.

It is alleged that on the day in question plaintiff was doing her washing in the basement and had gone out into the back yard to hang up some clothes, and on returning to the basement, and while using the said rear stairway leading from the yard to the basement, was injured by reason of the alleged breaking and giving way under plaintiff of one of said steps, causing her to fall down the stairway.

The assignments of negligence in plaintiff's petition are to the effect that the defendant negligently maintained said stairway in an unsafe and dangerous condition; negligently failed to repair said stairway; and negligently failed to inspect said stairway and the steps thereof.

Defendant's answer was a general denial and a plea of contributory negligence. The reply was a general denial.

In the state of the record before us the sole question for our determination is as to whether or not under plaintiff's own testimony she should be held guilty of contributory negligence as a matter of law.

Plaintiff herself testified that the stairway in question leading from the yard to the basement was made up of five steps, that the first step thereof, as one counts them from the yard to the basement, had a little "piece off the corner, End the second one was gone altogether," and that as she stepped from the top step onto the third step the third step gave way beneath her, causing her to fall and injure herself.

Plaintiff further testified with reference to the third step, "that was all rotten, every one of them," and in answer to the question as to how long they had been in that condition she answered, "Almost three months."

Plaintiff testified that about two months before she was hurt she had notified the defendant or its agent that the said steps needed to be repaired and was told that they would send out a man to attend to same, and that a month thereafter some one came to inquire whether the steps had been repaired, and she told him they had not been, and up...