Haywood v. Kuhn
| Decision Date | 12 November 1912 |
| Citation | 151 S.W. 204,168 Mo.App. 56 |
| Parties | BERTIE E. HAYWOOD, Respondent, v. JACOB KUHN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Charles Claflin Allen, Judge.
AFFIRMED.
Judgment affirmed.
Geo. W Lubke and Geo. W. Lubke, Jr. for appellant.
(1) The testimony tending to prove that the uterine trouble of the plaintiff is permanent was clearly incompetent. The petition contains no allegation of such injury or that the same is or will be permanent. This was not an issue in the case. Hartt v. McNeill, 47 Mo. 526. (2) The instructions directing a verdict in favor of the defendant asked by defendant should have been given. The property was in the same condition at the time of the letting to plaintiff's husband as it was at the time of her injury and she knew it and therefore assumed the risk of using the property in that condition. Moynihan v. Allyn, 162 Mass. 270; Quinn v. Perham, 151 Mass. 162; Shute v Bills, 191 Mass. 433. In an action for damages for personal injuries, founded on negligence, the plaintiff cannot recover if his own negligence directly contributed to his injury. Holwerson v. Railroad, 157 Mo. 216; Boyer v. Railroad, 168 Mo. 583; Reno v Railroad, 180 Mo. 469; McLeland v. Transit Co., 105 Mo.App. 473; Wallach v. Transit Co., 123 Mo.App. 160. Plaintiff's own want of care directly contributed to her injury and forbade a recovery on her part. McGinn v. French, 107 Wis. 54; Gallagher v. Button, 73 Conn. 172; Martin v. Surman, 116 Ill.App. 282; Purcell v. English, 86 Ind. 34; Vorrath v. Burke, 63 N. J. 188; Shackford v. Coffin, 95 Me. 69; O'Dwyer v. O'Brien, 43 N.Y.S. 815; Reams v. Taylor, 31 Utah 288. (3) Instruction No. 2, given for the plaintiff, singles out the testimony of Edward Kuhn and is a comment on it to the jury and should therefore not have been given. Barr v. Kansas City, 105 Mo. 559; Smith v. Anthony, 96 Mo.App. 420. It singled out a particular fact in the evidence and gave undue prominence to it and was therefore erroneous. Eckhard v. Transit Co., 190 Mo. 593; Gharst v. Transit Co., 115 Mo.App. 403; Landrum v. Railroad, 132 Mo.App. 717. (4) Instruction No. 3, given for the plaintiff is clearly erroneous. It directed the jury in estimating her damages "to consider any change in her physical condition" resulting from her injuries. In this respect the instruction was not confined to the issues. Maguire v. Transit Co., 103 Mo.App. 459; Wallack v. Transit Co., 123 Mo.App. 160; State ex rel. v. Dieckman, 124 Mo.App. 653; Feddeck v. Car Co., 125 Mo.App. 24. It also directed the jury in estimating plaintiff's damages to consider "such damages, if any," as the jury might believe from the evidence it is reasonably certain plaintiff would suffer from her injuries in the future, without undertaking to define the term "such damages." In this respect the instruction again was not confined to the issues, was entirely too general and afforded the jury ample opportunity for speculation as to what damages the plaintiff might, in the future, sustain by reason of her injuries. Badgley v. St. Louis, 149 Mo. 122; Camp v. Railroad, 94 Mo.App. 272; Jacquin v. Cable Co., 57 Mo.App. 320; McGowan v. Ore & Steel Co., 109 Mo. 518; Hawes v. Stock Yards Co., 103 Mo. 60. This instruction was also misleading as to the measure of damages and should not have been given. Feiner v. Nichols, 158 Mo.App. 539; Zumwalt v. Air Line, 71 Mo.App. 670.
E. Rosenberger & Son and Kurt Von Reppert for respondent.
(1) There was no error in permitting the witness, Doctor George S. Jackson to testify that in his opinion the uterine trouble of the plaintiff was permanent. Plaintiff without objection had been permitted to describe her condition. So had the doctor. The averments of the petition were broad enough to admit the evidence objected to. If error was committed it was harmless. (2) Plaintiff's instruction No. 2 correctly declared the law and was no comment on the testimony. (3) Instruction No. 3 was a correct declaration of the law on the measure of damages and has received the approval of our Supreme Court. If the instruction is subject to criticism the giving of it was harmless error and would not warrant a reversal. Curtis v. McNair, 173 Mo. 270. (4) Defendant's demurrers at the close of plaintiff's evidence and at the close of all the evidence were properly overruled. Whatever may be the rule in other jurisdictions, in this State it has been well settled that where several portions of a property are let to different tenants, with a part in common for the use of them all, the obligation is imposed by law on the landlord to exercise reasonable diligence to keep such common portions of the property in a reasonably safe condition for such purposes as may reasonably be anticipated to be a proper use of the property, and for his failure to perform that duty the law attaches to the landlord liability for injury to such tenant or to a member of his family. McGinley v. Alliance Trust Co., 168 Mo. 257; Udden v. O'Riley, 180 Mo. 650; De Kalb Andrus v. Bradley Alderson Co., 117 Mo.App. 322; Herdt v. Koenig, 137 Mo.App. 588; Mascheck v. Klute, 133 Mo.App. 280.
--The husband of plaintiff in this case was the tenant of defendant, renting from him the upper rooms of an apartment house, in which rooms plaintiff and her husband resided. The lower rooms were rented to another family. To the rear of this apartment house was a yard, at the back of which were sheds and outhouses. A gate or opening led to an alley. This back yard and the outhouses were used in common by the several tenants of the apartment house. There was no made walk through the yard, the tenants throwing ashes and cinders from the rear of the house to the back of the lot in muddy weather. There were two sewer or drain pipes between the house and the vaults, one some twelve inches the other some five or six inches in diameter. The twelve-inch pipe projected some six or seven inches above the ground and was covered with what is described as a tin tub. The flange or rim of the six-inch pipe was broken off level with the surface of the ground on one side; a portion of it appears to have projected two or three inches above the surface. A loose flat rock was used as a cover for this six-inch pipe. The premises were in this condition when rented.
There is a good deal of conflict in the testimony as to the size and weight of this rock, but that point is not material now. It was in evidence that the rock which was provided for this smaller pipe often became displaced and the tenants and members of their families were in the habit of replacing it over this sewer or drain pipe. Plaintiff testified she had often done that herself.
On the night of the 21st of October, 1907, plaintiff and a letter carrier, who was boarding with plaintiff and her husband, went out through this back yard and through the gate in the rear of the premises to go to a moving picture show on a street north of the premises. Returning from that and entering the premises through the rear gateway, plaintiff and her companion walking through the yard, plaintiff remembered that she had left some utensils out by the back fence. She turned back to get them to carry into the house. She had gone from six to eight feet away from her companion when he heard her scream. Going to her he found that she had fallen and that her right foot and limb had gone into this six-inch drain pipe and was so securely held that she could not withdraw the limb. Calling the tenants of the lower apartment to his assistance, they with considerable difficulty managed to extricate plaintiff's limb from the pipe, and her husband having joined them, they carried plaintiff into the house and up into her own apartment. She was confined to her bed for quite a length of time, and for a longer time to the house. While no bones were broken, she sustained a very severe sprain and was internally injured, the latter injury, as testified to by the attending physician, resulting in prolapse of the uterus, a permanent injury as testified by that physician. Plaintiff had paid the physician some twenty-five dollars for his attendance and had also paid a nurse or attendant $ 2.50 a week for some six or eight weeks that she was with her. Plaintiff's occupation had been that of seamstress and she earned about $ 1.50 a day. She testified that she had lost the effective use of her right limb, with which before then she had operated her sewing machine, and her earning capacity as a seamstress very greatly diminished. The physician testified that her injuries, both external and internal, in all probability were permanent. The plaintiff testified that the moon was shining, although not very brightly, on the night and at the time of the accident; that she saw the stone lying in the yard but supposed that it was in its usual place over the opening of the drain pipe and was not aware that the drainpipe was open until she stepped into it.
At the conclusion of the testimony for plaintiff, and again at the conclusion of all the testimony, defendant interposed a demurrer, both of which were overruled. The jury returned a verdict in favor of plaintiff for $ 1750. Judgment following, defendant filed his motion for new trial as well as one in arrest of judgment. These being overruled and exception saved, defendant duly perfected appeal to this court.
The errors here assigned are to the improper admission of testimony and the refusal of the demurrers As to the latter it is claimed that it clearly appeared that plaintiff's own want of care directly contributed to her injury and prevented a recovery on her part, and further, that it appeared that the...
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