Milton v. Holtzman

• Decision Date: 02 December 1919
• Docket Number: No. 15605.,15605.
• Parties: MILTON v. HOLTZMAN.
• Court: Missouri Court of Appeals

216 S.W. 828

MILTON v. HOLTZMAN.

No. 15605.

St. Louis Court of Appeals. Missouri.

December 2, 1919.

Rehearing Denied December 18, 1919.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

"Not to be officially published."

Action by Frances Milton against Meyer Holtzman. From a judgment for plaintiff, defendant appeals. Affirmed.

William Baer and Thomas B. Harvey, both of St. Louis, for appellant.

Holland, Rutledge & Lashly, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries alleged to have been sustained by plaintiff by reason of a negligent breach of defendant's duty as the owner of certain premises let in part to plaintiff's husband as tenant. The trial below resulted in a verdict and judgment for plaintiff in the sum of $500, and the defendant appealed to this court.

At the time of plaintiff's alleged injury, to wit, February 21, 1916, the defendant owned an apartment or tenement building in the city of St. Louis containing four "flats," and plaintiff's husband, with his family, including plaintiff, occupied one of these flats as defendant's tenant. In the rear of the building there was an inclosed yard used in common by all of defendant's tenants and their families occupying such flats. At the rear of the building there was a porch, with steps leading to the yard, and adjoining these steps, and at either end thereof, large planks were laid, extending parallel with the steps, forming a walk across the entire yard at this place. At the outer edge of this walk, opposite the steps and perhaps two or three feet therefrom, there was a hole in the ground which extended beneath the walk. Over this hole a small board about ten inches wide and three feet in length had been laid. On the day of her injury plaintiff was in this yard hanging her washing on a clothesline stretched across the yard. It appears that immediately prior to her injury she was upon the walk, near the steps mentioned, and that she placed her left foot upon the ground at the edge of the small plank which covered or partly covered the hole mentioned, when the earth at the edge of the hole gave way beneath her weight, causing her foot to enter the hole, by reason whereof she fell and sustained an injury to her foot and leg. Her testimony is that when she thus stepped into the hole one end of the small plank was forced downward into the hole, causing the other end thereof to rise and strike her in the face as she fell.

The evidence tends to show that a hole had existed at this place perhaps a year prior to the time of plaintiff's injury, but that it had been filled up; that the hole again appeared and had been in existence for some weeks prior to plaintiff's injury, this small board having been laid across it. Defendant testified that he knew of the existence of the hole after its reappearance; that his attention had been called to it by plaintiff two or three months prior to the injury, but that it was not as large as indicated by plaintiff's evidence. According to plaintiff's testimony she had lived at these premises about twenty months prior to her injury. She testified that she had never known of the existence of the hole; that she had seen the small plank mentioned, but did not know that it covered a hole. One witness for plaintiff testified that plaintiff had spoken to her concerning the hole as being dangerous. Plaintiff denied this, and denied that she had spoken to the defendant concerning the existence of the hole.

[] I. It is argued that the trial court erred in refusing to give a peremptory instruction offered by defendant at the close of plaintiff's case. We are of the opinion, however, that the case was one for the jury. It does not appear to be contended that no negligent breach of defendant's duty as landlord was shown; and indeed the evidence adduced leaves no room for such a contention. The argument in support of this assignment of error proceeds upon the theory that the evidence is such as to convict plaintiff of contributory negligence as a matter of law. But we regard it as entirely clear that the question whether plaintiff was guilty of contributory negligence was one to be referred to the jury. Even if plaintiff had knowledge of the existence of the hole (and she testified that she had none), it cannot be held that the danger was such as would deter a person of ordinary prudence from continuing to use that portion of the yard, or that plaintiff was guilty of negligence, as a conclusion of law, in failing to avoid the hole under the circumstances present.

[] IL Defendant offered an instruction On the credibility of the witnesses and the weight to be given to their testimony, which, among other things, contained the following:

"In this connection you are further instructed that, if you believe that any witness has knowingly and willfully sworn falsely to any material fact, you are at liberty to reject all or any portion of such witness' testimony."

The court refused to give the instruction in this form, but gave it after striking therefrom the words quoted above. Appellant earnestly contends that thereby the trial court committed error prejudicial to appellant for which this judgment should be reversed.

It is said that there were very material conflicts in the evidence whereby respondent was impeached on matters material to the issues, and that not only was the giving of an instruction of this character warranted under the decisions in Beeline v. Sealy, 257 Mo. 498, 165 S. W. 1088, Robert v. Rialto Building Co., 198 Mo. App. 125, and other cases there cited, 199 S. W. 428, but appellant was entitled, as a matter of right, to have the instruction given as offered, and its refusal was prejudicial—citing State v. Mix, 15 Mo. 154; Gillett v. Wimer, 23 Mo. 77; State v. Dwire, 25 Mo. 553; Peckham v. Lindell Glass Co., 7 Mo. App. 563.

The authorities last cited above tend, indeed, to sustain appellant's position that it was error to refuse this instruction. As will be seen, however, they are early decisions of the Supreme Court, and later decisions of that court, and of this court as well, appear to reflect a contrary view.

In State v. Hickam, 95 Mo. 322, loc. Cit. 332, 8 S. W. 252, 257 (6 Am. St. Rep. 54), It is said that the propriety of giving an instruction of this character "in any particular case must be left largely to the judgment and discretion of the trial court"—citing White v. Maxcy, 64 Mo. 552.

In McCormick v. City of Monroe, 64 MO, App. 197, loc. cit. 202, it is said, by Rombauer, P. J.:

"The rule as finally established is that such an instruction, if carefully worded, may be given with propriety where the facts warrant it. * * * The propriety of giving or refusing it, however, must be left mainly to the discretion of the trial court. State v. Hickam, 95 Mo. 322 [8 S. W. 252, 6 Am. St. Rep. 54]."

In Beasley v. Jefferson Bank, 114 Mo. App. 406, loc. cit. 409, 89 S. W. 1040, it is said, by Goode, J.:

"The giving of the common instruction that the jury is the sole judge of the credibility of witnesses and may disregard the testimony of any witness who has...