Monsour v. Excelsior Tobacco Co.
| Decision Date | 31 October 1940 |
| Docket Number | 36588 |
| Citation | 144 S.W.2d 62 |
| Parties | MONSOUR v. EXCELSIOR TOBACCO CO |
| Court | Missouri Supreme Court |
B Sherman Landau, of St. Louis, for appellant.
A.A Alexander and T.J. Crowder, both of St. Louis, for respondent.
HYDE Commissioner.
This is an action for $ 12,500 for personal injuries, alleged to have been sustained in falling down a stairway. The negligence alleged and submitted was failure to provide light in the stairway, in violation of an ordinance of the City of St. Louis, requiring a light in common halls and stairways of tenement or apartment houses. The jury found for defendant and plaintiff has appealed from the judgment entered.
The first trial of this case resulted in a judgment for plaintiff, which was reversed upon appeal by the St. Louis Court of Appeals because of the erroneous theory of plaintiff's main instruction. Monsour v. Excelsior Tobacco Co., 115 S.W.2d 219. It is conceded that the evidence, as to facts upon which liability is claimed, was the same at this trial as at the first trial. Since these facts are fully and clearly stated in the opinion of the Court of Appeals, they will not be repeated here, and reference is made to that opinion for the statement of facts which we now adopt. Plaintiff, at the last trial, again offered the same instruction, which the Court of Appeals held to be prejudicially erroneous, and this instruction was refused by the trial court. Plaintiff by its assignment of error on this refusal challenges the correctness of the ruling of the Court of Appeals. The ordinance relied upon required proprietors, of such houses, 'of two or more stories in height to provide and keep a light * * * in the common halls and stairways on each and every floor.' (Our italics.) We think that the Court of Appeals correctly construed this ordinance to mean that only one light was required on the second floor (whether the light fixture was directly in or over the stairway or not, if it lighted it) for the reasons given in its opinion. Moreover, as hereinafter shown, plaintiff's main instruction did submit the issue of whether defendant 'failed to provide and keep a light in the stairway.' This certainly stated the matter very favorably to plaintiff. We, therefore, overrule this assignment.
The case was submitted on plaintiff's instruction 1, which stated that 'the ordinance required such lights (as provided for therein) to be constantly burning from twilight in the evening until daylight in the morning,' and that violation of the ordinance 'is negligence itself.' This instruction authorized a verdict for plaintiff if the jury found that plaintiff, while exercising ordinary care in descending said stairway, 'stepped upon some small object which was on the steps of said stairway (if you so find) and slipped and fell down said stairway'; and that 'the defendant failed to provide and keep a light in the stairway' and that 'such failure on the part of the defendant was the direct and proximate cause of plaintiff's fall.' The two essential contested fact issues (outside of the extent of plaintiff's injuries) were whether or not plaintiff did fall on the stairs (the police officers who took plaintiff to the hospital testified that he told them 'he got hurt by falling on the sidewalk' upon which there was snow or sleet); and whether or not the light in the hall at the top of the stairway was burning at the time plaintiff claimed he fell. (Defendant's evidence, police officers' and hospital diagnosis, also was that plaintiff was found to be under the influence of alcohol.) The evidence was sharply conflicting on these two main fact issues. There was no dispute about the location of the light, although there was some conflict of testimony about its size and brightness. Plaintiff challenges defendant's instruction 2, which was submitted the converse of plaintiff's main instruction (namely, authorizing a verdict for defendant if the jury found that 'there was an electric light attached to the ceiling of the hall and about eight feet back from the top step of the stairway' and that 'said light was burning and that said stairway was rendered reasonably light at the time plaintiff attempted to descend'), on the ground that the Court of Appeals incorrectly construed the ordinance (which we have overruled on the previous assignment), and on the further ground that there was no evidence on which to base it because no one testified that the light was burning at the exact time plaintiff said he fell. This overlooks the fact that the jury was not required to believe plaintiff's evidence that it was not burning. Not only did plaintiff have the burden of proof to show that it was not then burning, but defendant had the testimony of George Cole that the light was burning when he was in the building about 8:00 p. m. and again about 9:00 p. m. See Woehler v. City of St. Louis, 342 Mo. 237, 114 S.W.2d 985; Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932. This assignment is also overruled.
Plaintiff complains of defendant's instruction 3, which informed the jury that the only charge of negligence was failure to provide a light and keep it burning. This instruction further stated that 'in determining whether or not the defendant negligently failed to provide a light, and to keep the same burning, as aforesaid, you cannot consider the existence, or presence, on the steps of said stairway, of some small object, if any there was, at the time,' etc. (describing the incident), * * * 'and all evidence as to the presence of some small object on the steps of said stairway is withdrawn from consideration (this italicized part is the principal basis of plaintiff's objections) unless you find and believe from the evidence that the defendant did fail to provide a light in said stairway, or in the halls, sufficiently near said stairway to light said stairway, and failed to keep said light burning at the time,' etc. Plaintiff's complaint (outside of argument on his construction of the ordinance heretofore ruled) is that it singles out and comments upon one circumstance in evidence; that it erroneously withdraws all evidence (instead of only withdrawing such a ground of recovery) as to the presence of a small object on the stairs; and that it in effect requires the jury to find that failure to have the light burning was the sole cause of plaintiff's fall and injury. Clearly this was a withdrawal instruction for the purpose of withdrawing the presence of a small object on the stairs as a ground of negligence, and to do so it had to mention the matter to be withdrawn. Therefore, there is no improper comment. It was proper to withdraw it because no such ground of negligence was pleaded; because there was no evidence (as plaintiff admitted) to establish defendant's liability for any small object being there; and because this had been injected into plaintiff's main instruction (although it was only an evidentiary fact) in such a way as to make it appear to be a ground (if not the main ground) of negligence. The whole basis of plaintiff's submission was no light at all (burning), total darkness; not merely insufficient light to see such an object on the step if the light furnished was burning. This distinguishes the situation in this case from such cases as Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43, cited by plaintiff. While this instruction might have been more clearly worded, nevertheless, when read as a whole, we think it is plain that it did not withdraw this evidence from consideration by the jury as a contributing cause of plaintiff's fall (or in any way excuse a failure to have a light burning) if they believed there was no light burning at the time. Under the circumstances of this case we hold that it was not prejudicial error.
Plaintiff complains of instruction 5, authorizing a finding of contributory negligence against plaintiff, for failure to use the handrail to descend the stairway in the dark, if the jury should find 'that it was dark in and about said stairway'; and which also hypothesized 'that there was a handrail attached to the wall on the left hand side of the stairway, for the use of persons ascending or descending said stairway.' Plaintiff objects to the use of the above italicized words as going beyond the evidence. We find no merit in such contention. Plaintiff also complains of instruction 6, on credibility of witnesses, because it 'erroneously omits reference to the witnesses who testified by deposition.' This instruction did not limit its application to witness who 'had appeared before them' as in Hansberger v. Sedalia Electric Ry., L. & P. Co., 82 Mo.App. 566, cited by plaintiff. Although it authorized the jury to consider 'manner on the witness stand,' it also told them they could consider interest in the result, relation to or feeling toward the parties and other matters which would apply to witnesses testifying by deposition. This court overruled a similar contention in Flint v. Loew's St. Louis Realty & Amusement Corp., 344 Mo. 310, 126 S.W.2d 193. We overrule plaintiff's assignment against instructions 5 and 6.
Plaintiff's final assignment as to instructions is against instruction 7 on the burden of proof. Plaintiff's complaint is directed at the third sentence, reading as follows: 'Therefore, if the evidence on the issues of facts necessary to a verdict in favor of plaintiff is evenly balanced, or if the evidence does not preponderate in favor of the plaintiff, on such issues, then you cannot find in favor of the plaintiff, and your verdict should be in favor of the defendant.' Plaintiff says this placed upon him the burden of disproving contributory negligence. Standing alone, we think this sentence would be misleading. However, the first sentence of this instruction (the second...
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