Action by Sarah L. Meyers against Charles S. Russell and others. Verdict for plaintiff. From an order granting defendants a new trial, plaintiff appeals. Reversed and remanded, with directions to render judgment on the verdict.
Omitting caption, the petition is as follows: "Plaintiff for cause of action states that on the 30th day of December, 1897, defendant Charles S. Russell was the owner of the premises at No. 4154 to 4166 North Grand avenue, in the city of St. Louis, Mo., and on said date negotiated a loan on said premises through defendant F. E. Niesen, as the agent of E. Carroll, and executed a deed of trust to the said E. Carroll thereon, to secure the payment of the said loan, and on said 30th day of December, 1897, the defendant made and entered into the following agreement, to wit: `This agreement, entered into this thirtieth day of December, 1897, by and between Charles S. Russell, of the city of St. Louis, party of the first part, and F. E. Niesen, of the same place, party of the second part, sets forth the following, to-wit: Whereas, the said Niesen has negotiated a loan on property belonging to the said Russell, known as premises No. 4154 to 4166, inclusive, North Grand avenue, and whereas it is to the mutual interest of the owner as well as the holder of the said mortgage, that said property be kept in constant repair, in order to realize the greatest possible amount of income from the same, the said Russell, with that end in view, hereby appoints the said Niesen his agent to manage said property, make all repairs, collect all rents, attend to insurance and do all other things and acts necessary to carry out this agreement, both in terms and spirit. All repairs and alterations exceeding the sum of $25.00 shall be subject, however, to the approval of said Russell. This agreement to continue during the full period of said loan. Signed December 30, 1897. Charles S. Russell.' That on the said 30th day of December, 1897, the defendant Charles S. Russell, after he had negotiated said loan as aforesaid and executed his notes and deed of trust to the said E. Carroll to secure the payment of the same upon the aforesaid premises, and made and delivered the said agreement to defendant F. E. Niesen, sold and conveyed said premises to the following named persons, to wit: Virginia Bent, Sallie Bent, a widow, Olive Bent, John B. Bent, Seddie Bent, Silas Bent, and Nannie Bent, all of Bowling Green, in the state of Kentucky. That by the terms of said deed of conveyance the grantees therein took said title to said premises and the same was conveyed subject to the said deed of trust, and the said grantees assumed the payment thereof as part purchase money, and said deed was also made, executed, and delivered, subject to the said agreement made and entered into by and between the said defendants on said December 30, 1897, and said agreement is now in full force and effect, and the said defendants have had control of the said premises thereunder for the purposes therein mentioned during all the time since it was executed, collecting the rents, leasing and controlling the same. That the said loan on said premises, as evidenced by said deed of trust, is still unpaid and is a lien upon said
premises, and the term for which said loan was made has not expired. That on the 23d day of September, 1904, plaintiff leased of defendants No. 4154A North Grand avenue in the city of St. Louis, Mo., as a monthly tenant at the agreed price of $12 per month, payable monthly in advance, and took possession and moved therein on the 27th day of September, 1904. That at said time there was a front and rear entrance to said premises by means of a wooden stairs leading thereto, which were on the second story of said building. That the back stairway led to the back yard of said premises under the control of defendants, and was intended for the use of the tenants of defendants occupying the said second floor of said building. That on the 29th day of September, 1904, while plaintiff was walking down said back stairway, and while she was exercising ordinary care for her own safety, the said stairs broke, gave way, causing her to fall to the yard beneath, and to strike it with great force and violence, breaking her left shoulder, bruising and lacerating her right arm, causing it to become stiff and permanently disabled, and causing serious injuries to her right side, and also internal injuries, all if which injuries are permanent and lasting. That at said date it was the duty of defendants, by the terms and conditions of the verbal lease with plaintiff, to keep up and maintain said stairway in a good condition of repair. That for a long time prior to the happening of the injuries complained of, and before the said premises were leased by plaintiff, the said back stairway had been out of repair and unsafe and dangerous, and defendants knew that the same were out of repair, unsafe, and dangerous, or could have known the same by the exercise of ordinary care and prudence in time to have repaired the same and prevented the happening of the injuries to the plaintiff complained of herein, but carelessly and negligently permitted said back stairs to be and remain in an unsafe and dangerous condition, thereby directly causing the said injuries to plaintiff while she was exercising ordinary care and prudence for her own safety. That at said time plaintiff did not know that said stairs was unsafe or dangerous, and that the same was unfit for use. That in consequence of the injuries received by plaintiff as aforesaid, by means aforesaid, and in manner aforesaid, plaintiff has sustained lasting and permanent injuries, suffered great pain both of body and mind, lost much valuable time, and been put to great expense for medicine and medical attendance in being treated for said injuries, to wit, in the sum of $200, to her damage in the sum of $10,000, for which she sues and prays judgment."
The answer is as follows: "Come now Charles S. Russell and Frederick E. Niesen, defendants herein, and, for answer to the petition herein, deny each and every allegation thereof. And, further answering, defendants state that the injuries to plaintiff in the petition complained of were caused and occasioned by the plaintiff's own negligence and want of ordinary prudence and care, contributing directly thereto, in this: That the unsafe and dangerous condition of the alleged stairway was apparent to observation at the time said accident occurred, as it had been prior thereto, and during the time the premises were occupied by the plaintiff; that during her said occupancy of the premises for several days said stairway was frequently under her observation, and the plaintiff could have known by the exercise of ordinary prudence and care that said stairway was dangerous and unfit for her use; that nevertheless the plaintiff undertook to use the stairway, and while using it the stairway fell, to her alleged injury. Further answering, defendants state that at and before the time of said alleged falling of said stairway the...
