Karp v. Barton

• Decision Date: 05 March 1912
• Citation: Karp v. Barton, 144 S.W. 1111, 164 Mo. App. 389 (Mo. App. 1912)
• Parties: KARP v. BARTON.
• Court: Missouri Court of Appeals

144 S.W. 1111

164 Mo. A. 389

KARP v.BARTON.

St. Louis Court of Appeals. Missouri.

March 5, 1912.

Rehearing Denied March 23, 1912.

1. LANDLORD AND TENANT (§ 162)—TENANCY FOR YEARS—LIABILITY OF LANDLORD.

Where portions of a building are let to several tenants with part in common for the use of all, the landlord is bound to exercise ordinary care to keep such part in a reasonably safe condition, and for breach of such duty causing the death of a child of a person boarding and lodging with one of the tenants the landlord is liable.

2. LANDLORD AND TENANT (§ 169)—TENANCY FOR USE—REPAIRS—EVIDENCE.

In an action against a landlord for death of the child of a person who boarded and lodged with one of the tenants, caused by a defect in a porch used in common by all the tenants, evidence held to warrant a finding that defendant had constructive notice of the defect.

3. LANDLORD AND TENANT (§ 167) — TERM FOR YEARS—INVITEES.

Persons invited on demised premises by tenants are rightfully there, and so a child of one who boarded and lodged with a family whose apartment abutted on a porch used in common by all the tenants of the building was rightfully on the porch, and the parent could recover from the landlord for death of the child owing to a defect in the porch.

4. NEGLIGENCE (§ 136)—CONTRIBUTORY NEGLIGENCE.

A four year old child, who swung his body through a third-story banister while holding to the rail, and thus met his death by falling to the ground, was not guilty of contributory negligence as a matter of law.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Simon Karp against Jefferson D. Barton.From a judgment for defendant, plaintiff appeals.Reversed and remanded.

Hattie Greensfelder, Robertson & Robertson, and E. W. Jacoles, for appellant.Jos. Barton and Barclay, Fauntleroy & Cullen, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the wrongful death of his minor son.At the conclusion of the evidence the court instructed a verdict for defendant, and plaintiff prosecutes the appeal.

It appears defendant owns a three-story brick tenement building numbered 1010-1012 North Ninth street in the city of St. Louis.This building is subdivided into several separate apartments or flats which defendant lets to his tenants for residence purposes.Across the rear end of the building and at each story thereof defendant maintains a porch for the accommodation of the tenants.As we understand the evidence, the building runs east and west, and on each floor there is an apartment known as the "south flat" and one known as the "north flat."The porch referred to extends north and south along the east end of the building, and it is said to be common to both apartments or flats on that floor.The particular porch involved here is that on the level of the third floor of the building, and but one stairway leads from the porch below to it.The tenants from either the north or south flat of the third floor are required to pass over the same porch and down the same stairway to the porch below, from whence they pass by another stairway to the earth beneath.Neither the porch on the level with the second or third floor is partitioned off as though a portion only was intended for the use of those occupying either apartment, but instead the construction suggests the whole should be used in common by the tenants.Besides the construction of the porches themselves, the record is replete with evidence tending to prove that both the porches at the second and the third floor were common to all of the tenants on those floors.According to the plan of construction, both the porches at the second and third floors are protected by railings or banisters, about three feet in height, which pass from north to south for the full length of the porch which serves the two apartments.These banisters are...