Hunter v. Schuchart

Decision Date11 July 1924
Docket NumberNo. 18629.,18629.
Citation267 S.W. 411
PartiesHUNTER v. SCHLUCHART et al.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Wardie Hunter against Jacob Margulius, on whose death the cause was revived in the name of his executors, Fred Schuchart and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Montague Punch, of St. Louis, for appellants.

James C. Shaner, of St. Louis, for respondent.

BRUERE, C.

This is an action for damages for personal injuries received through the alleged negligence of one Jacob Margulius. The suit was begun in a justice court and appealed to the circuit court of said city. The defendant, Jacob Margulius, having died while the cause was pending in the circuit court on appeal, the cause was revived in the name of the executors of his estate. The trial in the circuit court resulted in a verdict and judgment of $350 for plaintiff, respondent here, from which said executors have appealed.

The charging part of the petition is as follows:

"That said defendant was on or about the 5th day of January, 1921, the owner of a certain building known as No. 2625 Franklin avenue in this city, which is known as an apartment or tenement house, divided off into flats or apartments which are rented to tenants, each tenant renting and occupying exclusively a flat or suite of rooms, and using in common the back porches, or galleries, and stairways appurtenant for ingress and egress, the rooms or apartments alone being rented to and in exclusive use of the respective tenants, while the porches, or galleries, and stairways were in the possession and control of the landlord, the said Jacob Margulius, and were not exclusively appurtenant to the apartment of any one tenant, but were designated for and used by all"the tenants in common for ingress or egress to and from their apartments respectively.

"Plaintiff further states that one Ralph Hunter was a tenant on the fourth floor of said building, and on or about said 5th day of January, 1921, he was preparing to remove from said building, and that he had invited said plaintiff on said premises to aid and assist him in removing his said furniture and household effects from said apartment.

"Plaintiff further states that said defendant had for a long time prior to said 5th day of January, 1921, attached a pulley to the top of the building in the rear of said building for the use of all the tenants to use in removing their said household effects from said building at any time, and also for the purpose of elevating from the ground to the said second, third, and fourth stories any furniture or other goods which they wished to bring into said building.

"Plaintiff further states that while he and the said Ralph Hunter were removing some of the furniture of the said Ralph Hunter from the said premises by the use of the said pulley, it became necessary for the said plaintiff to approach a banister which is a portion of the said porch on the third floor, and in the performance of his duty in the lowering of the said furniture by the means of the said pulley and as his body came in contact with the said railing of the said porch, said railing or banister broke loose, or gave way, and he fell to the ground below, a distance of about 30 or 35 feet, and suffered serious injuries thereby; that the accident resulted from the fact that the railing was negligently constructed, in that it was not braced as it should have been and was fastened only with nails that were too small for the purpose and which had been exposed to the weather for a number of years and had become corroded, and the nail holes had become rotten, and the railing was negligently suffered to remain thus out of repair, the defendant knowing, or by the exercise of ordinary care would have known, its condition, and the plaintiff did not know of it."

Briefly stated, the undisputed facts in the case are as follows: The defendant, Jacob Margulius, was the owner of a tenement building known as 2625 Franklin avenue in the city of St. Louis, Mo. Several portions of said building were let by him to different tenants. On the fourth floor of said building said landlord maintained an outside porch for the common use of the tenants occupying said fourth floor. For a long time prior to the accident, a pulley, with a rope thereto attached, was maintained on said porch for the common use of said tenants in conveying articles to and from said porch to the ground. It appears that a Mrs. Hunter, the mother of one Ralph Hunter, was a tenant of Jacob Margulius, and as such occupied an apartment on the fourth floor of said building. During her said tenancy, and on the 21st day of December, 1920, Mrs. Hunter died leaving her household and kitchen furniture in said apartment. It appears that Mrs. Hunter had given said furniture to her son, Ralph Hunter, who is a nephew of Wardie Hunter, the plaintiff. A few days after Mrs. Hunter's death, Ralph Hunter went to his mother's said apartment to remove said furniture. The plaintiff, at the request of Ralph Hunter, accompanied him to the said premises and assisted him in removing said household effects from said apartment. It further appears that while the plaintiff was lowering a piece of said furniture, with the use of said pulley, over a railing along the edge of said porch, he leaned against said railing, when it broke, and he fell to the ground and received the injuries sued for.

There was evidence adduced tending to show that the railing was defective, in that it was not braced but was held in place only with small nails, and that these and the wood into which they were driven had become rotten; and that the landlord, Jacob Margulius, could have learned of the defective condition of the railing by the exercise of ordinary care.

The errors assigned here relate to the refusal of the trial court to direct a verdict for the defendants, and to the giving and refusing of instructions....

To continue reading

Request your trial
18 cases
  • Wood v. Gabler
    • United States
    • Missouri Court of Appeals
    • April 3, 1934
    ...Mo. App. 1; Fabel v. Boehmer Realty Co., 227 S.W. 858; Myerson v. Kralemann, 208 S.W. 857; Gray v. Pearline, 43 S.W. (2d) 802; Hunter v. Schuchart, 267 S.W. 411; Karp v. Barton, 144 S.W. 1111; Lang v. Hill, 138 S.W. 698; Sheridan v. Forsee, 81 S.W. 494, 106 Mo. App. 495; Ward v. Fagan, 28 M......
  • Lambert v. Jones
    • United States
    • Missouri Supreme Court
    • November 12, 1936
    ...289; Miller v. Gesser, 193 Mo.App. 1, 180 S.W. 3; Fabel v. Boehmer Realty Co., 227 S.W. 857; Harakas v. Dickie, 23 S.W.2d 651; Hunter v. Schuchart, 267 S.W. 411; v. Dimaria, 89 S.W.2d 93; Wilson v. Jones, 182 S.W. 756; Winters v. Hassenbusch, 89 S.W.2d 546; Karp v. Barton, 164 Mo.App. 389, ......
  • Wood v. Gabler
    • United States
    • Missouri Court of Appeals
    • April 3, 1934
    ...193 Mo.App. 1; Fabel v. Boehmer Realty Co., 227 S.W. 858; Myerson v. Kralemann, 208 S.W. 857; Gray v. Pearline, 43 S.W.2d 802; Hunter v. Schuchart, 267 S.W. 411; Karp Barton, 144 S.W. 1111; Lang v. Hill, 138 S.W. 698; Sheridan v. Forsee, 81 S.W. 494, 106 Mo.App. 495; Ward v. Fagan, 28 Mo.Ap......
  • Mahnken v. Gillespie
    • United States
    • Missouri Supreme Court
    • November 20, 1931
    ... ... Mo.App. 389; Herdt v. Koenig, 137 Mo.App. 589; ... Udden v. O'Reilly, 180 Mo. 651; McGinley v ... Alliance Trust Co., 168 Mo. 257; Hunter" v ... Schuchart, 267 S.W. 411; Bleisch v. Helfrich, 6 S.W.2d ...          Sturgis, ... C. Ferguson and Hyde, CC. , concur ...   \xC2" ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT