Hirst v. Ringen Real Estate Co.

• Decision Date: 18 June 1902
• Parties: HIRST v. RINGEN REAL ESTATE CO.
• Court: Missouri Supreme Court

69 S.W. 368

169 Mo. 194

HIRST v. RINGEN REAL ESTATE CO.

Supreme Court of Missouri, Division No. 1.

June 18, 1902.

NEGLIGENCE — PLEADING — VIOLATION OF ORDINANCE.

1. Where plaintiff in her petition based her right to recover for injury to her child, which fell through defendant's hatchway, solely on the ground of its violation of a city ordinance requiring such hatchways to be guarded, she could not recover on the ground of the common-law negligence of defendant.

2. A petition alleging "that this hatchway, at the time of the injury to plaintiff's child, was not barred, inclosed by railing, gates, or other contrivances to prevent accidents or injuries to persons therefrom, as required by section 749, art. 3, c. 16, of the Revised Ordinances of the city," is sufficient to withstand attack by general demurrer.

Marshall, J., dissents in part.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Mary Hirst against the Ringen Real Estate Company. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action for damages by the mother of an infant child who was killed by falling into a hatchway on premises owned by the defendant. The defendant demurred generally to the petition. The court sustained the demurrer. The plaintiff stood upon the ruling, final judgment on demurrer was entered for the defendant, and the plaintiff appealed. The sufficiency of the petition is, therefore, the sole question involved herein. The petition is as follows: "Plaintiff, for her amended petition, leave of court first had and obtained, states that the defendant, the Ringen Real Estate Company, is now, and was at all times hereinafter mentioned, a corporation duly incorporated under the laws of Missouri. That the plaintiff is a widow, and the mother of Albert Robert Hirst, now deceased, the father having died prior to any time hereinafter mentioned. That she was the tenant of the said defendant at No. 1435 Old Manchester Road, located in city block No. 3991, in the said city of St. Louis, state of Missouri, on the 1st day of September, 1899, and for several months prior thereto, and as such did occupy the store room and two rooms in the rear, on the first floor at said number, also the front half of the cellar under said store room and rooms, the entrance to this portion being inside the store room. That there was a partition wall between this half occupied by the plaintiff and the rear half of the cellar. That there was a rear door from the rooms so occupied by the plaintiff into a court yard, which yard was under the control of the said defendant, but was used in common, by all of defendant's tenants occupying its flats opening out into said yard, for drying clothes and various other purposes of like kind. That the said flats of said defendant were two stories. The one so occupied by the plaintiff was, at the time plaintiff first went to live there, occupied by a tenant on the second floor, who had the exclusive use and control of the rear portion of said cellar and the entrance thereto, but had vacated said second story and cellar; both of these were in the exclusive possession of the defendant at the time of the injury to plaintiff's child. That the hatchway, area, and entrance was from the yard near to plaintiff's said rear entrance, and on the surface presented a square frame of wood about 4 feet by 5 feet and about 6 feet deep, the frame being on a level with said yard. That this hatchway, areaway, and entrance, at the time of the injury to plaintiff's child, was not barred, inclosed by railing, gates, or other contrivances to prevent accidents or injuries to persons therefrom, as required by section 749, art. 3, c. 16, of the Revised Ordinances of the City of St. Louis, approved April 7, 1893. That it was the duty of said defendant to have said hatchway, areaway, and entrance to said rear cellar protected as required by said ordinance. Plaintiff further states that on or about the 1st day of September, 1899, the said Albert Robert Hirst, the infant child of plaintiff, aged 2 years and 8 months, fell into said hatchway, areaway, and entrance, and was thereby seriously and fatally injured on the head and spine, from the results of which he died on or about the 24th day of October, 1899. Plaintiff further avers that said hatchway into which her...