Hieken v. Eichhorn

• Decision Date: 03 March 1942
• Docket Number: No. 25921.,25921.
• Citation: 159 S.W.2d 715
• Parties: HIEKEN v. EICHHORN et al.
• Court: Missouri Court of Appeals

159 S.W.2d 715

HIEKEN v. EICHHORN et al.

No. 25921.

St. Louis Court of Appeals. Missouri.

March 3, 1942.

As Modified on Denial of Rehearing March 20, 1942.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Harry Hieken and Katherine Hieken against Edward Eichhorn and others for the death of Bobby Hieken, a 3½-year-old boy who was run over by a truck. From an adverse judgment, defendants Eureka Real Estate & Investment Company and Real Estate Management Company appeal.

Affirmed.

Jones, Hocker, Gladney & Grand, and Lon Hocker, Jr., all of St. Louis, for appellants.

Russell J. Horsefield, J. M. Moldafsky, and Chelsea O. Inman, all of St. Louis, for respondents.

HUGHES, Presiding Judge.

This is an appeal from a judgment for plaintiffs for the wrongful death of their three and one-half year old son, Bobby Hieken, who was run over and killed by a truck on appellants' premises. Appellants own and operate what is known as the Donaldson Court Apartments, and the grounds appurtenant thereto. Donaldson Court Apartments consists of a group of four large apartment buildings, all facing east on Westgate Avenue, and designated from south to north as A., B., C. and D. Enright Avenue which runs east and west forms the north boundary of the property. Back of these apartment buildings is a large automobile garage extending south from Enright Avenue the full width of the north three apartment buildings. The space or area between the rear of the three north apartment buildings and the garage belongs to and is used in connection with the four apartment buildings and in common by all of the tenants as a passageway and by the children of the tenants as a playground. There are altogether about 80 apartments and at the time of the accident in question there were about 60 children of tenants living in the apartments, about ten of whom were approximately the same age as Bobby Hieken, and these children used the whole of the above mentioned area as a recreation or play ground. The rear end of building A. extends west so that the north wall of the building forms the south boundary of the areaway. The rear end of building C. extends farther west than building B. to the south of it and building D. to the north of it, thus making the areaway wider at both the south and north ends thereof than it is in the middle. At the north end of the areaway on Enright Avenue is an iron fence. The areaway is about twelve or fourteen feet wide except at the two ends, and is covered with concrete paving except the additional width at the two ends. At the north end and on the widened space of the areaway a sandbox was provided at which the younger children could play, and at the south end of the area was a goal for playing basketball. Other equipment, such as trapezes and swings and flying rings, were at different times provided for the children. The children also played such games as skip-the-rope, hop-scotch and marbles. The areaway was also used by tenants moving into or out of the apartment buildings and used by trucks in hauling coal to the apartment buildings and hauling the ashes therefrom. These automobiles and trucks could only enter the areaway through a gateway from Enright Avenue. At the entrance there were two iron frame gates covered with screening, one of the gates was always left open in order that pedestrians could pass at any time, and the other gate was kept closed and locked with a padlock so that automobiles or trucks could not enter the areaway without permission. One of the padlock keys was for convenience kept in the office of the garage, which was operated by one Joe Stupp who had no connection with the apartment buildings; another key was kept by Charles Holt who was maintenance man for the apartment premises, and a third key was kept by the janitor of the apartment buildings. The truck for the removal of ashes was operated in the reverse or backwards through the gates at Enright Avenue and along the concrete paving of the areaway for a distance of about 200 feet to three manholes connecting with the basement of one of the buildings, two of which were for receiving coal and one of which was for the removal of ashes. At the entrance gate on Enright Avenue is a sign stating: "Private Property, No Trespassing, One Half Gate Locked, Other Half Gate Open". The children of tenants used the entire areaway for their various games and in going to and from the basketball goal at one end and the sandbox at the other end. At the time of year that the accident occurred the ashes were removed from the building every Saturday morning, and this had been the custom for at least two years.

On Saturday, April 8, 1939, William Jackson, who was employed by Edward Eichhorn, who was in the hauling business using the name Northern Hauling Company, following the regular custom went to Donaldson Court Apartments to remove the ashes; he was driving a Mack Truck which had a chain drive and when in operation made considerable noise. The evidence was conflicting as to how Jackson gained admission through the locked gate; he said that he got the key from the garage, and Stupp denied that Jackson or anyone else ever used the key that had been left at the garage. Both Charles Holt, the maintenance man, and William Quinn, the janitor, were in the basement. Holt before going into the basement saw the children playing around, and while in the basement he heard the truck from the time it came in the gate. Most generally there were two men in the truck when it backed in, but on this occasion Jackson was alone. Holt said that on this occasion when he heard the truck he finished the task he was about in the basement and then went up to help them with the truck, but he said he had nothing to do with the work of loading the truck, and when he came upstairs he found Bobby Hieken lying on the concrete dead.

The version of how the accident occurred as given by William Jackson the driver of the truck was as follows: That in backing the truck he could not have seen a tot such as this boy on the right side or in the rear of the truck. That on this occasion when he backed the truck into the driveway he saw Bobby and told him to get out of the way, and he did; that he then backed the truck a little over the length of the truck from the gate, and Bobby came down the walkway and he again made him get away from the truck and Bobby went on around the building; he then backed the truck approximately 75 feet and stopped and got out and ran the kids away from the basketball court; he then got in the truck and continued backing it and the first he knew of an accident the kids hollered and said "Stop, you ran over a little boy;" that he stopped and Bobby was under the front wheel of the truck.

Two of the older boys who witnessed the accident said that as the truck was backing south, Bobby came from the apartment building and was walking in a southwest direction towards the pathway of the truck, and when he was about 18 or 20 feet back of the truck they yelled at the truck driver to stop, and yelled at Bobby, but neither of them heard the warning, and Bobby was struck by the rear end of the truck and knocked down and the truck ran over him.

There was testimony that at times Holt or Quinn directed the truck driver as he backed the truck in, and that Holt would tell the children to get out of the way of the truck; and there was testimony that usually there were two men with the truck and one of them would stand on the running board or be in back of the truck and tell the driver where to go. The manager of the Real Estate Management Company, Arthur Moore, said that the gate was to be locked at all times except when a delivery was made or when someone moved into the premises; that the driveway is private property, and that "the building" had to know when a man came in to get ashes.

The suit originally named as defendants the appellants and Edward Eichhorn and Mary Eichhorn. During the course of the trial the cause was dismissed as to Mary Eichhorn, and went to the jury as against the appealing defendants and Edward Eichhorn. The verdict was in favor of plaintiffs for $2,802, against these appellants, and was in favor of defendant Eichhorn.

The plaintiffs sought a recovery against Eichhorn on the theory of negligence on the part of the driver in the operation of the truck. The jury having found in favor of Eichhorn, and plaintiffs accepting the verdict, that issue is no further in the case.

The plaintiffs sought a recovery against the appealing defendants on the theory of negligence as the owners and managers of the apartment buildings and the appurtenant grounds, in that they knew, or in the exercise of ordinary care could have known, that the areaway was used as a playground by its tenants'...