Harakas v. Dickie

• Decision Date: 02 December 1929
• Parties: GEORGE HARAKAS, BY NEXT FRIEND, APPELLANT, v. EMMETT E. DICKIE ET AL., RESPONDENTS. [*]
• Court: Kansas Court of Appeals

23 S.W.2d 651

224 Mo.App. 171

GEORGE HARAKAS, BY NEXT FRIEND, APPELLANT, v. EMMETT E. DICKIE ET AL., RESPONDENTS. ^[*]

Court of Appeals of Missouri, Kansas City

December 2, 1929

Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

Charles N. Sadler for appellant.

McCune Caldwell & Downing for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

Action by George Harakas, a minor, by Pete Harakas, his father and next friend, to recover damages for personal injuries. At the close of plaintiff's evidence the court instructed the jury to return a verdict for defendants, whereupon plaintiff took an involuntary nonsuit, with leave to move to set the same aside. Plaintiff appealed from the order and judgment of the court overruling his motion to set aside the involuntary nonsuit.

The scene of the accident in question was large apartment building at the southwest corner of Sixteenth Street and The Paseo in Kansas City, Missouri. Although physically connected, the entire building was comprised of a number of distinct units or apartments, each unit being three stories in height. Each unit had a separate front entrance. Some four or five units faced north on Sixteenth Street between the Paseo and an alley to the west thereof, while the others faced upon the Paseo. At the rear of each unit was a common stairway to serve the three apartments of such unit and porches at each floor thereof, with railings enclosing the porches and stairway. The rear building line of the apartment was not uniform. The rear of the apartment unit abutting the alley on Sixteenth Street and the rear porches thereof (upon which the plaintiff was injured) extended some twenty to forty feet south of the rear of the other apartment units and porches on Sixteenth Street (in one of which plaintiff and his family resided). The apartment in which plaintiff lived had no connection with, nor access to, the porches upon which he claims he was injured. Plaintiff and his family lived in the fourth apartment from the alley. Steps lead up from the ground to approximately three feet from the center of the porch on the first floor. From there steps lead westward up approximately six feet to a landing between the first and second floors. A "U" turn is then made and steps placed against the building itself lead eastward and upward approximately five and one-half or six feet to the floor of the porch on the second floor. The porches are enclosed with a wooden railing consisting of a two by four inch top rail, and a one by four inch bottom rail, each fastened to vertical uprights. At the second floor the timbers forming the railing about the porch are carried west and north apparently for symmetry and architectural effect to enclose the stairway well. These timbers were not so placed for any protective purpose, as they could not be used, brushed against or touched by anyone using the stairs or porches for any ordinary or contemplated use.

The testimony of plaintiff discloses that he and his family had moved into one of the interior apartments on November 3, 1924,--five days before the accident in question occurred. On November 8, 1924, the seven-year-old sister and the three-year-old brother of plaintiff finished their supper and went out back of the apartment building to play with the Pares children who lived in one of the apartments. The two Pares boys and the brother of appellant went up the stairs to the second floor of the apartment in question to borrow a basket ball belonging to a boy living there. When next noticed, the three-year-old brother of plaintiff was lying lengthwise upon a railing across the west side of the stairway enclosure and was crying. This railing was a continuation of the next to the top railing about the porch on the second floor and was approximately seven or eight feet above the landing between the first and second floors. It could not be reached or touched by plaintiff and his brother from any part of the porches or stairs or from the landing between the first and second floors. No one else testified to seeing the boy get upon the railing where his sister noticed him, and the only way he could have gotten there was by going to the second floor, then crawling westward along the railing to the corner post and then northward along the continuation of this railing. When the sister noticed him, she called to his twelve-year-old brother who was just coming out of the back door of their apartment. He ran up the steps to the first landing and climbed up the corner post to reach the place where his brother was lying. As he had his right arm about the top rail and was attempting to push his little brother inside, the top rail gave way and plaintiff fell to the alley below. The railing which gave way was eight feet above the landing between the first and second floors and could not be reached or touched by anyone using the porch or stairs in the usual and customary manner. It was not there for any protective purpose for people using the stairs, landings and porches.

Over defendants' objection, plaintiff was permitted to introduce testimony to the effect that the general condition of the porches, steps and railings was old and defective and that the railings were rotted, weak and shaky. Also that children frequently had been seen climbing up and down the steps, corner posts and railings, banisters, coal sheds in the rear and "all around everywhere."

Plaintiff's first contention is that it was the duty of defendants, as landlords, to keep the porches and railings which were used in common by the tenants of the apartment, in a reasonably safe condition of repair for the use of such tenants and other persons as might use the porches and railings for any legitimate or lawful purpose.

The evidence shows that the porch from which plaintiff fell was not used in common by all tenants of the entire building. However, it is shown that the apartment building, although one structure, consisted of units, each unit being three stories high, and the porch in question served one of these units, and was used in common by all of the tenants occupying such unit. As the porch was so used by all tenants occupying the unit of the apartment which the porch served, it was under the control of defendants, whether such control was evidenced by express reservation or implied from such common use. [Miller v. Geeser, 193 Mo.App. 1, 19-20, 180 S.W. 3.] Other authorities might be cited, but the law as above announced is so well settled that we will not lengthen this opinion by citation or discussion of other cases. The porches being under the control of defendants, it was their duty to exercise reasonable care to keep them reasonably safe for the use of tenants and other persons for the purposes for which they were intended.

The next questions presented in the determination of appellant's contentions are, (1) Did appellant's brother, not living in this unit of the apartment building, have a lawful right to use the porch, and (2) If so, was he using it for a purpose or in a manner which the landlord actually or impliedly intended it to be used? The evidence shows plaintiff's brother and sister went to the back yard of the apartment for the purpose of playing with the Pares children who lived in one of the apartments. The two Pares boys and plaintiff's brother went up the stairs to the second floor of the porch for the purpose of borrowing a basket ball which belonged to another boy living in one of the apartments on the second floor. This was a legitimate use of the porch stairs. Plaintiff's brother had a lawful right to use the porch and stairs for the purpose of going to the neighbor boy's apartment to borrow a ball or for any other legitimate purpose. In other words, plaintiff's brother had a right to use the porch and stairs in order to reach his neighbor boy's home for any lawful purpose, and while so using them, the landlords owed him the same duty they owed the tenants of the building with respect to the condition of the porch and stairs. [Hunter v. Schugart, 267 S.W. 411; Herdt v. Koenig, 137 Mo.App. 589, 119 S.W. 56.] This being true, if the perilous position of the boy had arisen while he was using the porch and stairs for the purpose aforesaid, and while using due care, and if plaintiff in the exercise of due care had been injured in attempting to rescue his little brother from such perilous position, on account of the negligent failure of defendant to keep the porch and stairs in a reasonably safe condition, then defendants would be liable. [Donahoe v. Wabash Ry. Co., 83 Mo. 560.] In other words, defendants are not liable for plaintiff's injuries unless they were guilty of negligence with respect to the boy before plaintiff attempted to rescue him, or were guilty of negligence toward the boy or plaintiff after the attempt to rescue had commenced. [Donohue v. Wabash Ry., supra.]

Keeping the above principles in mind, the next question is whether or not defendants were guilty of negligence with respect to the boy before, or with respect to the boy or appellant after the latter's efforts to rescue the boy commenced.

The boy ascended the stairs to the second floor in safety. When next seen he was lying lengthwise upon a cross-piece or railing which extended north and south along the west side of the stair well. This railing was seven or eight feet above the landing between the first and second floor, and could not be reached or touched by any one from any part of the porch floor or stairs, or from the landing between the first and second floors. The porch floor was east of the stair well which was at the west end of the porch. The porch and stair well are enclosed with a...