Miller v. Geeser

• Decision Date: 02 November 1915
• Docket Number: No. 14111.,14111.
• Citation: 193 Mo. App. 1,180 S.W. 3
• Parties: MILLER v. GEESER
• Court: Missouri Court of Appeals

180 S.W. 3

193 Mo. App. 1

MILLER v. GEESER

No. 14111.

St. Louis Court of Appeals, Missouri.

November 2, 1915.

Rehearing Denied November 23, 1915.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Benjamin Miller, an infant, by Samuel Miller, his next friend, against Morris Geeser. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos. E. Mulvihill and R. M. Nichols, both of St. Louis, for appellant. Sale & Frey, of St. Louis, for respondent.

REYNOLDS, P. J.

Action in tort by an infant through his father acting as next friend, to recover damages for an injury sustained by falling off of a porch along the second story of an apartment house owned by defendant. The petition proceeds on the theory that the porch, extending along two apartments on the second story of the building, was for the common use of the tenants of both apartments and that it was the duty of the defendant owner to keep the porch and railing surrounding it in a reasonably safe condition for the necessary and ordinary use by the tenants and members of tilt family, and especially by their children who might be lawfully using the porch, it being charged that for a long time prior to the date of the injury to the infant, this porch was out of repair, in that several uprights or slats in it had been and at the time of the injury were broken out and had not been replaced, thereby creating large apertures or openings which rendered the railing dangerous and unsafe for persons lawfully using the porch and more especially the plaintiff, and that defendant knew, or in the exercise of ordinary care could have known, that the porch railing was out of repair and unsafe and in a dangerous condition. Averring that on the afternoon of April 28th, 1911, while rightfully using the porch, the plaintiff, a child then about 18 months old, fell from the porch through one of these open places in the railing to the ground floor, a distance of some 20 feet or more, and as a result, broke the femur in his right leg, producing a permanent injury, and charging that this injury was directly had and caused by the negligence of defendant in failing to maintain the railing in a reasonably safe condition, and in failing to replace the missing slats, judgment is demanded for $5,000.

The answer admits the ownership by defendant of the two-story brick building composed of six flats or apartments, giving their numbers, those on the second floor being numbered 2019A, 2021A, and 2023A on Wash street in the city of St. Louis, and it is admitted that on or about March 15th, 1911, the defendant rented to plaintiff's father the premises known as 2023A, but defendant denies each and every other allegation in the petition.

There was a verdict and judgment for plaintiff in the sum of $2,000, from which defendant has duly perfected his appeal.

Perhaps the case will be better understood by here reproducing a sketch of the premises showing in part the three apartments or tenements on the second floor. There Is some dispute between counsel as to the accuracy of this sketch but in the main it was accepted as substantially correct. We avail ourselves of it, adding a few details not on it when used, but which we gather from the evidence, to make it a little plainer:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It would appear from the evidence that the railing around the entrance to the stairway marked "X" in the plat was close against the north railing of the porch. The width of this opening of the stairway and the distance from that to the north wall of the rooms is not in evidence, nor is the distance between the west end of the porch proper and the opening to the stairway, nor the distance from the end of the stairway railing to the partition (Z) between the Guller and Weinberg porches in evidence. The slat at or over which the child fell is the seventh or eighth slat west of the partition (Z) between the Guller porch and the remainder of the porch, at the place where the plat shows a chair (B).

The Millers occupied the west apartment (2023A), and the Weinbergs the next one east of that (2021A).

The evidence on the part of plaintiff tended to show that the porch running from "A" to "Z" and extending in front of the Miller and Weinberg apartments was but one porch; that the tenants of 2021A, occupied by the Weinbergs, to obtain access or egress to and from their apartment, passed along in front of the (Miller apartment, 2023A, and so down to or up from the stairway, the entrance and exit of which was to the west. There is ample testimony that the children of the two families were in the habit of playing across and along the whole porch from one end to the other, more particularly on that part of it in front of 2021A, the Weinberg apartment, that being the largest clear space on the porch. All of the witnesses for plaintiff spoke of this porch before the two apartments as being but one porch, and it is not disputed that at the time of the accident there was no partition between that part of the porch in front of the Miller apartment and that part in front of the Weinberg apartment.

There was testimony tending to show that on the day of the accident, the infant plaintiff was with his mother in their kitchen, 2023A; that while the attention of the mother was attracted to some household duties, the little fellow came out of the kitchen, wandered along the porch to where this slat or upright was out of the railing, at the point on the plat opposite to which the chair (B) is shown, and his mother, turning her head, saw him lean out of or through this aperture and ran to catch him. The mother testified in the most positive terms that there was no chair there at the time; that the infant had not climbed up on a chair and was not leaning over the top of the railing, but had fallen through the opening, and a young girl, daughter of Mrs. Weinberg, testified that before this she had moved that chair from this place and set it back against the north wall (C) of the apartment. Whereas there was just as positive testimony on the part of defendant that the chair was there, opposite the opening; that the child climbed up on it and was leaning over the top railing when he fell over it to the ground. There is no question over the serious injury to the infant plaintiff and that this injury was the result of the fall.

On the part of defendant, testifying for himself, it was also in evidence that he had not himself rented 2023A to the Millers but that that had been done through an agent. He further testified that he had personally rented the premises 2021A to the Weinbergs and that in renting to them he had specifically rented the rooms, three of them, with the porch in the rear and with a cellar underneath. His testimony was that while there was then no division along the porch to divide the Weinberg part from the Miller part, that each section of the porch opposite these respective apartments pertained to and belonged to the tenant of that apartment. The evidence was without contradiction that both the Weinberg and Miller tenants used the stairway going from the porch of this second story down to the ground floor in common, and that to get to or from it the tenants of 2021A were obliged to pass over that part of the porch which is in front of 2023A. But while there is no evidence of any user by the tenants of 2023A of that part of the porch in front of 2021A, except by the children, as before stated, the testimony to that, as we have noted, is that the children of the two families used this space in common on which to play.

The Miller family had been tenants of this apartment some six weeks before the accident occurred, Mrs. Miller hiring the apartment through another tenant who had the keys to it and who showed her the rooms.

There was testimony tending to show that in addition to the absence of a slat at the place, through or over which the child Yell, slats were out at various other places along this porch banister, and that Mrs. Miller had placed pails or wash tubs at these openings in front of her apartment to prevent her child from falling through. It will be seen from the plat that the stairway marked "X" was the only one for the tenants of 2021A and 2023A, that marked "R" in fruit of the Guller apartment being for the sole use of the tenants of that apartment. Tee Gutter apartment (2019A) is to the east of the Weinberg apartment, separated from It by a court. and there was a partition, marked "Z" on the plat, separating the Guller perch from that which extended in front of the Weinberg and Miller premises.

The testimony on behalf of plaintiff tended to show that the landlord (defendant) had been notified of the absence of these uprights or slats from the banister along this porch on several occasions; that he had been there before the accident and had seen them and said he would repair the porch. On his part, defendant denied this most positively, denying that he had been on the premises between the renting and occupancy of the Millers and the time of this accident.

This is a rather meagre outline of the testimony taken at the trial of this case, the trial occupying parts of two days; the testimony, as brought up to us, covering some two hundred and twelve pages, but we think it sufficient, in connection with the plat, to an understanding of the facts.

At the conclusion of plaintiff's testimony and again at the conclusion of all the testimony, defendant unsuccessfully interposed demurrers, whereupon the court, at the instance of plaintiff, gave three instructions. At the instance of defendant it gave two instructions as asked, modifying others asked by defendant.

We do not consider it necessary to set out the instructions in detail, as the only attack upon them is to a part of the main instruction given at the instance of plaintiff, and we will set out so much of that as necessary when we turn to the consideration of that...