Horvath v. Chestnut Street Realty Co.

• Decision Date: 08 November 1940
• Docket Number: No. 25062.,25062.
• Parties: HORVATH v. CHESTNUT STREET REALTY CO.
• Court: Missouri Court of Appeals

144 S.W.2d 165

HORVATH v. CHESTNUT STREET REALTY CO.

No. 25062.

St. Louis Court of Appeals. Missouri.

November 8, 1940.

Appeal from St. Louis Circuit Court; Joseph J. Ward, Judge.

"Not to be reported in State Reports."

Action by Eva Horvath against the Chestnut Street Realty Company, a corporation, for personal injuries alleged to have been sustained by plaintiff as result of a fall down a flight of marble stairs in an office building owned and operated by defendant. From a judgment for plaintiff for $1,500, defendant appeals.

Judgment reversed and cause remanded for new trial.

Jones, Hocker, Gladney & Grand and James C. Jones, Jr., all of St. Louis, for appellant.

Robert E. Hannegan, Gilbert Weiss, and Martin A. Rosenberg, all of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries alleged to have been sustained by plaintiff-respondent as the result of a fall down a flight of marble stairs in an office building owned and operated by defendant-appellant in the City of St. Louis, Missouri. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff for the sum of $1,500. After an unavailing motion for a new trial, defendant duly appealed.

Plaintiff's amended petition, on which the cause was tried, alleged that, on September 30, 1936, she was descending some marble steps leading into the basement of the Title Guaranty Building on the southwest corner of Seventh and Chestnut Streets in the City of St. Louis, for the purpose of visiting a tenant in said building; that, while descending said steps, she was caused to slip and fall and thereby sustain serious and permanent injuries, all as the direct and proximate result of the negligence of defendant in the following respects:

(1) That defendant negligently caused, suffered and permitted the said marble stairs to become worn and slick so as to become unsafe and dangerous to plaintiff and other persons walking thereon when, by the exercise of ordinary care, defendant knew or would have known of said condition in time thereafter to have remedied same and avoided injury to plaintiff; (2) that defendant negligently failed to provide the south side of said stairs with a handrail when, by the exercise of ordinary care, it would have done so and thereby avoided injury to plaintiff; (3) that defendant knew, or, by the exercise of ordinary care, would have known, that said stairway was composed of a slick surface and that it was customary for persons walking thereon to keep to the right, and that a person descending said stairway on the right side thereof would find no handrail to grasp; that defendant, by the exercise of ordinary care, should have known of said condition in time to have remedied the same by placing a handrail on the right side of said stairway, or a tread composed of nonskid material on each of the steps, but negligently failed to do so.

The answer of defendant was a general denial.

Defendant contends that the trial court erred in refusing to give its instruction in the nature of a demurrer to the evidence requested at the close of plaintiff's case; and further erred in reading to the jury an instruction on behalf of plaintiff purporting to cover the entire case. These assignments of error make it necessary to review the evidence.

Plaintiff testified that she was fifty-two years of age, married, and living in the City of St. Louis; that about 2 p. m. on September 30, 1936, she was on her way to renew her subscription for an Hungarian newspaper which was owned and published by a Mr. Kaldor in the basement of the Title Guaranty Building in the City of St. Louis; that it was raining at the time and "it was wet everywhere"; that it had rained almost all week; that, as she started down the stairway, a man was coming up on the right-hand side; that she was pulling to the right-hand side of the stairs going down; that as she stepped on to the second step, her foot slipped and she leaned over to grab something but she was already going down; that she fell from the top to the bottom, the entire length of the stairs, some twenty-three steps; that she sustained severe injuries as the result of her fall; that, as she was being carried up the stairs after sustaining her injuries, she noticed "there was a mark where I slipped; that showed a mark where I slipped, the step where I slipped down." She was asked what kind of a slide mark she observed, and answered: "It was about two fingers wide, muddy streak, leading on the stairs"; that, when they were carrying her up, she noticed the steps were wet. She testified that her shoes were wet when she entered the building; that the steps were of marble, having "a smooth surface"; that, as she went down the south side of the stairs on the right-hand side, "there was no railing to hold myself"; that the occasion mentioned was the first time she had gone down to see Mr. Kaldor.

Plaintiff introduced in evidence a weather report for the month of September, 1936, which showed that on the 27th and 28th of said month the rainfall was approximately two and one-half inches; that it had rained on the 29th of September, the day prior to that on which plaintiff sustained her injuries, and that on the date of the injury there was a trace of rain; that on the 27th and 28th of the month mentioned there was no sunshine, while on the 29th there was only one per cent., with nineteen per cent. on the entire day of the 30th of said month.

J. H. Dunne, manager of the building, was called as a witness for plaintiff and identified a photograph of the stairway in question, which was introduced in evidence as plaintiff's Exhibit E. The witness testified that the stairway was constructed of marble; that it had been in continuous service and use for two or three years prior to the accident; that the original marble was of ordinary smoothness for a floor, but was not polished marble; that the stairway was used by the tenants in the basement; that it was four and one-half feet wide, contained twenty-three steps, the tread or width of which was about eight or nine inches; that there were no holes or depressions of any sort, and there was no perceptible wear shown thereon; that on the left or north side of the stairway was a handrail or bannister extending from the top to the bottom thereof; that on the south side of the stairway was a building wall where there was a small ledge of marble where the marble wainscoting joins the upper wall of the building; that the only thing that anyone could grasp on the right-hand side in descending the stairs was the small ledge of marble which was only of sufficient width to permit a person to place his fingertips on it; that there was nothing on the tread of the stairway to give it a rough surface; that some marble when wet is slicker than when dry; that he was familiar with the custom of people keeping to the right; that he was also familiar with the fact that a certain amount of water and mud would be brought into the building by people coming in and going out thereof when it was raining; that nothing was done with reference to keeping the lobby dry when it was raining outside "unless the accumulation of moisture is excessive"; that mats were placed at the entrance doors and in the inner vestibules of the building, but no mats were placed on the stairway or at the top of the stairway.

Edwin P. Weindel, a supervising architect, was called as a witness for plaintiff and testified that he was connected with a firm which specialized in office building management; that he had charge of the installation of stairs and alterations of various kinds in buildings; that he inspected the stairway in the Title Guaranty Building involved in this case; that facing the stairway in a position to go down the stairs, there is a handrail on the left-hand side but no handrail on the right-hand side. The witness further testified that there was no construction difficulty which would have prevented putting a handrail on said right-hand side.

With respect to the type of material of the treads on the...