Monsour v. Excelsior Tobacco Co.

• Decision Date: 05 April 1938
• Docket Number: No. 24433.,24433.
• Citation: 115 S.W.2d 219
• Parties: MONSOUR v. EXCELSIOR TOBACCO CO.
• Court: Missouri Court of Appeals

115 S.W.2d 219

MONSOUR v. EXCELSIOR TOBACCO CO.

No. 24433.

St. Louis Court of Appeals. Missouri.

April 5, 1938.

Rehearing Denied April 20, 1938.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be published in State Reports."

Action by John Monsour against the Excelsior Tobacco Company for injuries sustained when plaintiff fell down a stairway in defendant's tenement house. Judgment for plaintiff for $3,750, and defendant appeals.

Reversed and remanded.

A. A. Alexander and T. J. Crowder, both of St. Louis, for appellant.

B. Sherman Landau, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries which plaintiff claims that he received as the result of his falling down a stairway in a tenement house located at 1114-16 South Fourth street in the city of St. Louis, and owned by defendant, Excelsior Tobacco Company.

The negligence pleaded and relied upon by plaintiff was defendant's alleged nonobservance of a certain ordinance of the city of St. Louis (Chap. XXXIII, Art. XVI, Sec. 3590, Revised Code of St. Louis 1926), which provides that "it shall be the duty of the keeper or proprietor of every * * * tenement house * * * of two or more stories in height, to provide and keep a light unobstructed by colored glass in the common halls and stairways on each and every floor," and that "all of said lights shall be kept constantly burning from twilight in the evening until daylight in the morning of each and every day."

The answer was a general denial, coupled with a plea of contributory negligence to the effect that plaintiff, in attempting to descend the stairway, failed to look where he was walking and where he was going, and failed to pay attention to what he was doing and to the manner in which he was walking.

Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $3,750, and from the judgment entered in conformity with the verdict, defendant has duly perfected its appeal to this court.

Defendant, Excelsior Tobacco Company, is a small corporation which, for all practical purposes, represents two brothers, Alex Cole and George Cole, who are engaged in the business of manufacturing tobacco products in the building in question, which is a three-story building located on the east side of South Fourth street in a neighborhood both commercial and residential in character. The whole of the first floor is taken over by the tobacco factory, and Alex Cole has his bed in the office which the company maintains on that floor. The second and third floors are given over entirely to residential purposes, with living quarters provided for two families on each of such floors. George Cole, the other brother in the corporation, occupies one of the quarters on the third floor.

There is a wooden stairway of 23 steps which leads directly up to the second floor from a door on the first floor which opens out upon the sidewalk. At the top of the stairway there is a hall which extends back for the full depth of the building and separates the living quarters for the two families on the second floor. The stairway is from three to four feet in width, and is wholly inclosed, by which is meant that there is a solid wall on either side of it, and a ceiling overhead. The north wall is entirely blank, but along the south wall, or to the right of any one going up the stairs, is a handrail which extends the entire length of the stairway.

The only light provided for the stairway comes from a droplight which hangs from the ceiling of the hallway at a point from six to ten feet back of the head of the stairs. The evidence was that "these stairs going up to the second floor were always lighted with a light at the top of the steps," and that because of the adequacy of the light in the hallway there was no necessity for the installation of a light fixture over the stairway itself.

Plaintiff's injuries were received about 9:30 o'clock on the night of December 9, 1934.

Plaintiff's home at the time was just a few doors to the north of defendant's building. According to his version of the facts, he left his home that evening for the purpose of calling upon a sick friend who lived in one of defendant's second-floor apartments. He claims that when he reached the building he noticed that the light at the head of the stairway was not burning, but that, being familiar with the stairway from the fact that he had gone up and down it on 70 or 80 previous occasions, he went on up to the second floor and felt his way along through the darkness until he reached the door of his friend's apartment.

Getting no response to his knock on the door, he started back down the stairway, cautiously feeling his way and steadying himself on the stairs by running his hand along the wall to his right. On about the third step from the top he "stepped on something like a spool of thread," which caused him to lose his footing and fall down the stairs and halfway out upon the sidewalk, where he lay until he was found and taken to his home by certain of his acquaintances in the neighborhood. The police department was notified, and, after an investigation by a couple of officers who were detailed to make a report on the accident, he was taken in an ambulance to the City Hospital, where an examination disclosed that he had sustained a fracture of the right wrist and a laceration of the lip.

According to the two police officers who were called as witnesses for defendant, plaintiff told them at the time of their investigation that he had fallen on the icy sidewalk in front of the premises of the Excelsior Tobacco Company, and made no mention of having fallen down the stairway. They also testified that he was intoxicated, and in this they were corroborated by the physicians at the City Hospital, who made a diagnosis of acute alcoholism at the time of plaintiff's admission into that institution.

As regards the question of whether the light in the stairway was burning, George Cole testified that when he had gone up to his third-floor apartment about 9 o'clock that evening he had observed that "the light was burning," while Alex Cole testified that about 9:30 or 10 o'clock that night he had gone up to the back porch from where he could see all the lights, and that "they were lit up" at that time.

Defendant urges as a matter of chief insistence that plaintiff made no case for submission to the jury, and that the court should consequently have sustained its request for a directed verdict at the close of all the evidence.

Upon the issue of its own negligence in failing to have had the light in the hallway burning at the time of plaintiff's fall upon the stairway, it argues that its duty in such respect was only to exercise reasonable care to keep the premises in a reasonably safe condition for persons rightfully using the same, and that, even though it be assumed that the light was not burning when plaintiff attempted to use the stairway, there was still no evidence to show that the light had been out for a sufficient length of time prior to the accident as to have charged defendant with knowledge of that fact in time to have remedied the condition.

The trouble with this contention is that it fails to take into account the fact that defendant's duty to furnish light for the common halls and stairways was an absolute duty created by ordinance, so that any nonobservance of such duty was negligence per se and actionable if the failure to have had the light burning was the direct and proximate cause of plaintiff's fall and injury. Duff v. Eichler, 336 Mo. 1164, 82 S.W.2d 881; Manar v. Taetz, Mo.App., 109 S.W.2d 721.

In the case of common-law negligence which involves a violation or disregard of some duty which is known by the party to be charged therewith, it is of course true that knowledge of the facts out of which the duty arises is an essential element to be considered in determining whether the proper degree of care has been exercised (45 C.J. 651), and it is also true that, where the negligence relied upon consists of some defect in an instrumentality or device which the defendant has the duty to maintain in a proper condition, the latter is ordinarily not to be charged with negligence for his failure to have remedied the defect unless it is shown that he had actual or constructive knowledge of the same in time to...