Gentili v. Dimaria

• Decision Date: 07 January 1936
• Docket Number: No. 23360.,23360.
• Citation: 89 S.W.2d 93
• Parties: GENTILI v. DIMARIA et al.
• Court: Missouri Court of Appeals

89 S.W.2d 93

GENTILI v. DIMARIA et al.

No. 23360.

St. Louis Court of Appeals. Missouri.

January 7, 1936.

Appeal from St. Louis Circuit Court; M. G. Baron, Judge.

"Not to be published in State Reports."

Suit by Maria Gentili against Carlo Dimaria and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

Wayne Ely and Tom Ely, Jr., both of St. Louis, for appellants.

S. D. Flanagan, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This suit was begun in the circuit court of the city of St. Louis on August 27, 1932. The amended petition, being the one on which the case was tried, in substance, was as follows:

That defendants were the owners of a two-story tenement house located at 1202 North Seventh street in the city of St. Louis, Mo.; that the same was so constructed as to be capable of being rented out to four families, living independently of each other, two families on the first floor and two families on the second floor and having a common right in the halls and stairways, and in the yard in the rear of said buildings; that on and prior to February 11, 1932, plaintiff's daughter, Sarah Tocco, and her husband, occupied a part of the second floor of said building as tenants of the defendants; that there were two separate flats on the second floor, which were let and hired out to be occupied by two separate families; that there was a common hallway and stairway leading from the second floor and that said hallway and stairway were provided by defendants for the common use of their tenants who occupied the second floor; that said Sarah Tocco and her husband had exclusive possession and control only of the rooms rented by them on said second floor and the hallway and stairway aforesaid were not exclusively appurtenant to the rooms rented by them or to the other tenant on the second floor, and that defendants retained possession and control of said hallway and stairway for the common use of their tenants occupying the second floor of said tenement house; that defendants for a long time prior to the 11th day of February, 1932, maintained at the head of said stairway an electric light for the purpose of lighting up said stairway so that their tenants on the second floor and the guests of said tenants using said stairway at night might be able to see where they were going and use said stairway safely; that defendants during all of said time furnished electric lamps at their expense to be inserted in the lamp socket at the head of said stairway and furnished at their expense the electricity consumed by said electric lamp; that several days prior to February 11, 1932, the electric lamp in said socket burned out and said Sarah Tocco promptly notified defendants of such fact and requested that they supply a new lamp; that defendants promised to furnish said lamp, but failed to do so at any time prior to the evening of February 11, 1932; that on said date plaintiff visited her daughter, Sarah Tocco, at said tenement and while she was walking down the stairs aforesaid at about 7 o'clock p. m., and while said stairway was dark and unlighted, she was caused to fall and thereby sustained serious and permanent injuries, all as a direct and proximate result of defendants' negligence; that at all times mentioned therein there were in full force and effect ordinances of the city of St. Louis, reading as follows:

"Sec. 3785. Lights in hallways. — In every tenement house of two or more stories, a proper safely-placed light, unobstructed by any colored glass or other obstruction, shall be provided and kept by the owner, trustee or lessee in the common hallways, so as to light up such halls and stairways, every night from sunset to sunrise throughout the year.

"Sec. 3797. Definitions of terms used in article. — The word `tenement house,' where it occurs in this article, shall be taken to mean and include every house, building, or portion thereof which is rented, leased, let, or hired out to be occupied or is occupied as the house, home or residence of more than three families, living independently of one another and doing their cooking upon the premises, or by more than two families upon a floor, so living and cooking, but having a common right in the halls, stairways, yards, water-closets or privies, or some of them";

— that plaintiff's injuries were directly and proximately caused by negligence of defendants in the following respects, to wit: (1) That defendants negligently failed to exercise ordinary care to furnish a new electric lamp for the socket at the head of said stairway within a reasonable time after being requested to do so, by plaintiff's daughter, Sarah Tocco, and after promising to do so, although defendant had for a long time prior to the date aforesaid assumed the duty of furnishing such electric lamps and electric current, when they knew that such said stairway could not be used with reasonable safety unless provided with a light at the head thereof; (2) that defendants negligently and unlawfully failed to provide and keep a proper safely placed light unobstructed by any colored glass or otherwise in the common hallway and stairway in violation of said ordinances; that as a direct and proximate result of such negligence on the part of defendants, plaintiff sustained injuries (described in detail) and that in the care and treatment of her injuries she expended and obligated herself to pay the reasonable sum of $300 for doctors' bills and the reasonable sum of $325 for hospital bills, nurses, X-rays, and medicines and will be compelled to expend and obligate herself to pay further large sums for such purpose. She prayed judgment for $15,000.

The amended answer contained first, a general denial, and, second, a plea of contributory negligence on the part of plaintiff in attempting to use said stairway in its darkened condition.

The reply was a general denial.

The case was tried to a jury and a verdict for $2,000 was rendered in favor of plaintiff, upon which a judgment was entered.

After an ineffective motion for a new trial, the defendants bring the cause to this court by appeal for review.

The evidence, in general, supported the allegations contained in the petition, and disclosed the following facts: That plaintiff about 3 o'clock in the afternoon of February 11, 1932, visited her daughter and remained on her visit until about 7 o'clock in the evening; that on leaving she went through the back porch and hallway and proceeded towards the stairway; that she went down one step and fell, in her attempt to reach the second step. She testified that there was no light at all on the stairway; that she stepped easy and that in the four or five years that her daughter had been living at that place she had visited her practically every day or every other day; that the stairway had no bannister or railing on it and that she did not use her hands to feel along the wall.

It was further shown in evidence that during all the time the Tocco family lived on defendants' premises there had been a light socket at the top of the stairway and defendants had furnished light globes and paid the bills for the electricity consumed by this light; that for two or three days prior to the time plaintiff fell and was injured the light had been out; that Mrs. Tocco's son, at her request, had gone to defendants' home, when the light first failed, and notified them that the light was out and was promised by defendants that they would secure a light bulb from the electric company to be put in the socket, but failed and neglected to do so.

It was further shown in evidence that both of plaintiff's arms were broken in the fall, which was from the second step from the top, twenty-one steps to the bottom; that her face and head were swollen; that she was in the hospital for two or three weeks and that her right arm was still swollen at the time of the trial, which was had on the 20th and 21st days of November, 1933; that $300 was the reasonable value of the services of Dr. Tyzzer in attendance on plaintiff, which amount was still unpaid; that the bills for hospital, nurses, and X-rays, amounted to $325, and were paid by plaintiff's son, Joe Gentili, and that he paid these bills with his own money; that plaintiff was a widow sixty-three years old and was supported by her five sons.

Defendants' chief contention is that the trial court erred in refusing to give an instruction in the nature of a demurrer to the evidence, one of which was offered by defendants at the close of plaintiff's case and the other at...