Loundin v. Apple

• Decision Date: 03 June 1919
• Docket Number: No. 20138.,20138.
• Parties: LOUNDIN v. APPLE et al.
• Court: Missouri Supreme Court

212 S.W. 891

LOUNDIN v. APPLE et al.

No. 20138.

Supreme Court of Missouri, Division No. 1.

June 3, 1919.

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

Suit by Mary Loundin against Nathan Apple and others. Plaintiff dismissed or took a nonsuit as to defendants August Meyer and others, as owners. From a judgment for plaintiff against defendants Apple, as tenants, they appeal. Affirmed.

Frumberg & Russell, of St. Louis, for appellants.

E. V. Maher and John B. Dempsey, both of St. Louis, for respondent.

WOODSON, P. J.

The plaintiff brought this suit in the circuit court of the city of St. Louis against a large number of persons to recover $10,000 damages for personal injuries sustained through their alleged negligence. The court; at the close of plaintiff's evidence, sustained a demurrer thereto, but, upon motion, the court granted her a new trial. From the order of the court granting plaintiff a new trial, the defendants duly appealed the cause to this court.

The plaintiff brought the suit to recover damages she claimed she had sustained by reason of falling into a coal hole in the sidewalk on Franklin avenue in the city of St. Louis. The suit was against August Meyer, Edwin Meyer, Lena Meyer, Laura M. Fernholtz, Emma Teutenberg, and William H. P. Schoetker, guardian, on the ground that they were the owners and in possession of the adjoining premises, 1405 Franklin avenue, and had placed the coal hole in the sidewalk. The defendants Nathan Apple, Alexander Apple, and Benjamin Apple were also joined as defendants, on the ground that they were the tenants of the above-named owners, and rented or leased part of said building located at 1405 Franklin avenue, and were engaged in the leather business at said 1405 Franklin avenue, and that they, while doing business as the Star Leather Company, received coal through this hole in the sidewalk.

The alleged negligence counted upon by plaintiff was that—

"Plaintiff's injuries are due to and were caused through the carelessness and negligence of the defendants in this: That they negligently and carelessly suffered and permitted said hole to be improperly and dangerously covered, in violation of City Ordinance No. 1293 of the City Code, requiring the covers over such holes to be so fastened and secured as to prevent them from slipping or turning when stepped upon by pedestrians, when they knew, or by the exercise of ordinary care could have known, that the cover lid or grating was insecurely fastened and would slip or turn if stepped upon."

Before any evidence was introduced, the plaintiff dismissed as to some of the defendant owners and took a nonsuit as to the remaining owners, leaving the action to proceed against the appellants only. The answer of the appellants was a general denial.

The evidence of the plaintiff clearly tended to prove all of the allegations of the petition, and the appellants ask to have the judgment reversed for two reasons, namely:

"Before a defendant can be found guilty of negligence in failing to secure the safety of an opening in the sidewalk, it must be shown that he was in possession and had the use of such opening.

"The adjoining occupant, who subjects the sidewalk to his personal use, is not an insurer of its safety, and proof of injury is not sufficient to show negligence."

Regarding the first: The plaintiff's evidence...