Koenig v. Heitz

• Decision Date: 06 April 1926
• Docket Number: No. 19341.,19341.
• Citation: 282 S.W. 107
• Parties: KOENIG v. HEITZ et al.
• Court: Missouri Court of Appeals

282 S.W. 107

KOENIG v. HEITZ et al.

No. 19341.

St. Louis Court of Appeals. Missouri.

April 6, 1926.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Philip Koenig against Robert Heitz and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Earl M. Pirkey, of St. Louis, for appellant.

Wilbur C. Schwartz, of St. Louis, for respondents.

NIPPER, J.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff while working for defendants at their bakery, located on Grand Boulevard, in the city of St. Louis. The negligence counted upon for recovery is that plaintiff was required to use a gangway between defendants' building and another building on the same side of the street and immediately south of defendants', and that in this gangway there was a lid or covering, and defendants maintained this gangway in an unlighted and uncovered condition, and negligently caused and permitted said lid to be wet and slippery, and negligently required plaintiff in his employment to go through said gangway and over said lid, and as a result of the slippery condition of the lid and unlighted gangway plaintiff slipped and felt, receiving injuries as a result. The answer in addition to a general denial, contained a plea of contributory negligence, in that it is alleged that plaintiff negligently and carelessly failed to look "where he was going, or what he was doing, or where he was walking." Upon a trial in the court below, there was a verdict and judgment for defendants, and plaintiff has appealed.

The evidence discloses that defendants operated a bakery. Between the building occupied by the bakery and the building next thereto there was a passageway about 4 feet wide, and running the entire length of the building, which was 35 or 40 feet. The passageway, or the portion used for travel, was constructed of granitoid. No lights were maintained in this passageway. Near the rear of the building and opening into the passageway there was a door by which the building was entered in the rear. About the middle of the passageway there was a sheet iron cellar door which was even with the granitoid walk of the gangway. This door was 5 or 6 feet long, and covered the entire width of the gangway. It had hinges on the side next to defendants' building, and opened back against the wall. Plaintiff was working for defendants as a laborer, and was preparing the products of the bakery during the night so that the same might be taken away in the early morning. He started to work each night about 10:30 or 11 o'clock. He was directed to use this gangway in going into the bakery at night as the front door was generally fastened, and he used this passageway for an entrance by way of the rear door. He was injured about 1 o'clock in the morning. It was a drizzly night, and raining at the time plaintiff was injured. Plaintiff had started through the passageway, and slipped and fell on this door. The evidence discloses that plaintiff did not stumble or fall over any hinges or obstruction on the door. He slipped and fell on account of the wet condition of the exposed surface of the door. It is unnecessary for the purposes of this appeal to refer further to the testimony.

On behalf of the defendants, the court gave the following instruction, which plaintiff contends was error. We therefore set this instruction out in full:

"The court instructs the jury that...