Karp v. Barton
| Decision Date | 05 March 1912 |
| Citation | 144 S.W. 1111,164 Mo.App. 389 |
| Parties | SIMON KARP, Appellant, v. JEFFERSON B. BARTON, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Robertson & Robertson, Hattie Greensfelder and Arnold Loewenstein for appellant.
(1) The owner of a building who divides it into several apartments which he lets to various tenants, retaining to himself control of the halls and stairways for the common use of the different tenants and those having lawful occasion to be there, is bound to see that reasonable care and skill are exercised to render the halls and stairways, porches and landings, reasonably fit for the uses which he thus invites his tenants and others to make of them, and is responsible for any injury which his tenants and others lawfully using them, with due care, sustain through his failure to discharge his duty. Responsibility follows control. Lang v. Adv Sheets, 138 S.W. 698; Marcheck v. Klute, 133 Mo.App. 280; McGinley v. Trust Co., 168 Mo. 257; Herdt v. Koenig, 119 S.W. 56; Leydecker v Brintall, 158 Mass. 296; Watkins v. Goodall, 138 Mass. 533; Griffin v. Light Co., 92 Am. St. Rep 520; Burke v. Hulett, 216 Ill. 545; Gleason v. Boehm, 58 N. J. L. 475; Ross v. Jackson, 51 S.E. 578; Smith v. Walsh, 92 Md. 518; Peil v. Reinhart, 127 N.Y. 381; Payne v. Irwin, 144 Ill. 482; Gallagher v. Britton, 73 Conn. 172; Peters v. Kelly, 113 N.Y.S. 357; Shearman & Redfield on Negligence, sec. 710. (2) In the case at bar respondent himself and his agents had actual notice of the defective condition of the porch railing. However, even though he had no actual notice of such a condition of his premises, the law imposes upon him, the owner of such tenement property, that he exercise such care and prudence to discover such defects that should have been seen and corrected. And if such defects have continued a sufficient length of time, as in this instance, for at least five months, then the respondent will be charged with notice thereof. Herdt v. Koenig, 119 S.W. 56; Udden v. O'Reilly, 180 Mo. 650; Wiggen v. St. Louis, 135 Mo. 558; Shoninger v. Mann, 219 Ill. 242; Ross v. Jackson, 51 S.E. 578; Burke v. Hullett, 216 Ill. 545; Wilcox v. Hines, 100 Tenn. 524; Schwartz v. Monday, 97 N.Y.S. 978; Dollard v. Roberts, 130 N.Y. 267; Lindsay v. Leighton, 150 Mass. 285; Leydecker v. Brintall, 158 Mass. 292; Waterhouse v. Brew Co., 94 N.W. 587; Patterson v. Brewing Co., 91 N.W. 336. (3) A landlord who rents his premises for residence purposes and receives compensation for their use is in duty bound to contemplate all ordinary and reasonable purposes for which same might be used, and that friends of tenants' families might visit them without express invitation, so the obligation of the landlord to exercise reasonable care to keep the common or retained portions of the property in repair extends on the doctrine of implied invitation to such friends who call without express invitation. McGinley v. Trust Co., 168 Mo. 257; Herdt v. Koenig, 119 S.W. 56; Widing v. Ins. Co., 104 N.W. 239; Curtis v. Kiley, 153 Mass. 123; Stern v. Miller, 111 N.Y.S. 659. (4) It is a reasonable characteristic of children to so use porches of a tenement house to play on, which fact has a tendency to establish an implied invitation to use same. Miller v. Peck, 104 Mo.App. 609; Lewright v. Ahrens, 60 Mo.App. 118; Schmidt v. Dist. Co., 90 Mo. 284; Farley v. Byers, 111 N.W. 1023; Widing v. Ins. Co., supra; Car Co. v. Cooper, 46 Am. St. Rep. 216, 40 Ark. 545. Therefore, where one maintains premises, which from their peculiar nature are within the sphere of the "attractive" influence of children, and when this is known or could have been known by the owner, he ought to reasonably anticipate children would use them; respondent should have so anticipated the use of his property. And plaintiff's child was invited on the premises. Berry v. Railroad, 214 Mo. 593; Childress v. Railroad, 126 S.W. 169; Hillerbrand v. Merc. Co., 121 S.W. 326; Porter v. Anheuser-Busch, 24 Mo.App. 1; Light & Power Co. v. Healy, 13 Am. Neg. Rep. 71; Car Co. v. Cooper, 46 Am. St. Rep. 216, 60 Ark. 545; Barnes v. Railroad, 49 Am. St. Rep. 417; Franks v. Oil Co., 65 S.E. 339; 1 Thompson on Neg., sec. 1024; Shearman & Redfield on Neg., sec. 705; Barnes v. Railroad, 49 Am. St. Rep. 417; Pekin v. McMahen, 154 Ill. 141; St. & L. Co. v. Webb's Adm., 11 S.W. 512. (5) In determining whether appellant was guilty of contributory negligence in permitting his deceased child to escape from his custody and go upon the defective premises, it should be taken into consideration whether appellant exercised that degree of care and watchfulness that is reasonable for a parent in like circumstances and under surrounding conditions. Cornovski v. Tran. Co., 207 Mo. 263; Levin v. Railroad, 140 Mo. 624; Czezewzka v. Railroad, 121 Mo. 201; McNown v. Railroad, 55 Mo.App. 585; Winters v. Railroad, 99 Mo. 509; Railroad v. Raymond, 148 Ill. 241; Feldman v. Railroad, 127 N.W. 687; Tecker v. Railroad, 111 P. 791; Long v. Railroad, 107 S.W. 203; Murray v. Railroad, 36 Pac. S.Ct. 576; Parotta v. Railroad, 40 Pa. S.Ct. 138.
Jos. Barton and Barclay, Fauntleroy & Cullen for respondent.
(1) All three counts of the petition are defective because proceeding on the theory of attractiveness to children and failing to allege scienter on defendant's part. Berry v. Railroad, 214 Mo. 607. (2) Even if, for the sake of argument, we grant that the absence of the uprights was negligence and that this absence caused Milton Karp's death, plaintiff cannot recover because he does not prove that deceased fell through the uprights which defendant had allowed to be taken away. The burden of plaintiff is to show that the accident was due to defendant's negligence, and, if from aught that appears, it may have been due to other causes, a verdict should be directed for the defendant. Fuchs v. St. Louis, 167 Mo. 620. (3) The deceased was a trespasser and therefore there is no right of recovery upon any possible combination of facts. The general rule undoubtedly is, that the owner or occupier of land is not bound to take pains to prepare his premises in any particular way, to the end of promoting the safety of children who may come thereon as trespassers or as bare licensees; but that, as in the case of adults, they take the premises as they find them, and if they are killed or injured by reason of the condition in which they find them, this does not give a right to an action for damages. Moran v. Car Co., 134 Mo. 641; Witte v. Stifel, 126 Mo. 295; Schmidt v. Distilling Co., 90 Mo. 284; 1 Thompson Neg. (2 Ed.), sec. 1025. (4) A landlord is not liable for defects existing at the time of letting, and is under no obligation to keep premises in repair. Graff v. Lemp Co., 130 Mo.App. 602; Roberts v. Cottey, 100 Mo.App. 503. In the absence of a contract to repair, there is no obligation to do so. Glen v. Hill, 210 Mo. 296; Vai v. Wells, 17 Mo. 232; Ward v. Fagin, 101 Mo. 673; Zeitig v. Chemical Co., 131 S.W. 132; Coats v. Meriweather, 144 Mo.App. 89; Andrus v. Co., 117 Mo.App. 322. And the obligation to repair is on the tenant from month to month. Deutsch v. Abeles, 15 Mo.App. 398. (5) Plaintiff was guilty of contributory negligence, barring recovery, in allowing a child of such tender years to play on a porch he knew was dangerous. A parent negligence is a bar to a recovery for the child's death, though same would not be imputable to child suing in his own right for an injury. Berry v. Railroad, 214 Mo. 603.
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 constructed of pickets which were nailed between the sill and topmost rail of the...
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