Osborne v. Wells

• Citation: 211 S.W. 887
• Decision Date: 03 March 1919
• Docket Number: No. 13144.,13144.
• Parties: OSBORNE v. WELLS.
• Court: Court of Appeal of Missouri (US)

211 S.W. 887

OSBORNE v. WELLS.

No. 13144.

Kansas City Court of Appeals. Missouri.

March 3, 1919.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by Robert A. Osborne against Joel Wells. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Heidelberger & Houston and Robert C. McLin, all of Kansas City, for appellant.

House, Manard, Allen & Johnson, of Kansas City, for respondent.

THIMBLE, J.

Plaintiff's action is to recover damages for personal injuries sustained by falling into a cellar stairway through a door on his back porch, alleged to have been negligently left open by defendant. The answer was a general denial, with a plea of contributory negligence. Upon trial, there was a verdict and judgment of $3,000 in plaintiff's favor, and defendant appealed.

Defendant was the owner of a building with four suites of apartments in it, two on the ground floor and two on the second floor. The building fronted to the west, and in the rear, across the east end, was a porch. Plaintiff and his family occupied the ground floor apartment on the south, and a family by the name of Rouse occupied the north ground floor apartment. As stated, each of these had an apartment above it on the second floor. A basement or cellar was under the plaintiff's apartments, and the cellar was for the common use of the occupants of at least the two first and second story apartments on the south side. In it were two furnaces, one for the south ground floor apartment and one for the apartment immediately above it. At the time of be injury, October 27, 1915, the furnaces do not seem to have been started up for the season; and the record rather tends to show that the cellar or basement had not, as yet, come into much use that fall. Access to the cellar was afforded the plaintiff's apartment by an inside stairway and door thereto; but outside access to the cellar was had by means of a stairway starting from the outer edge of the porch and leading down to the cellar level, thus making the stairway opening extend east and west across the full width of the north and south porch, said opening being about 4 feet in width from north to south and about 7 feet deep next, to the building. This stairway opening was covered by a trapdoor in the porch floor, hinged on the south side. There was a door from plaintiff's kitchen opening on to the porch, and the north edge of the trapdoor when closed, or the north edge of the stairway opening when the trapdoor was open, according to plaintiff's testimony, was 12 inches south of the south jamb of the kitchen door. Plaintiff's witnesses gave this distance as 12 inches, though by counting the number of planks in the porch floor, disclosed by plaintiff's photographs, between the south edge of the kitchen door and the north edge of the cellar opening, it is somewhat over 2 feet rather than 12 inches. The photograph shows 10 planks of similar width in the trapdoor which is said to be 4 feet wide, while there are G and a fraction or nearly 7 of such planks in the space between the kitchen door jamb and the edge of the opening, which would make that distance fully 28 inches, it not more than that. A window in the kitchen looks out upon the porch, the north half of the window frame being about over the south third of the stairway opening. An electric light, a drop-cord, hung from the ceiling in the kitchen at a point a little north of the center of the room, but a little south of the door. A thick trellis of moon vines were growing along the east or outer edge of the porch, or at least on the south part of that portion of the porch in the rear of plaintiff's apartment.

The evidence in plaintiff's behalf is to the effect that defendant, the owner of the building, came out to the place in the afternoon and fixed some faucets in plaintiff's kitchen; that about 4:30 p. m. he left, saying he had done about all he could do to the faucets; that shortly thereafter plaintiff went out on the porch, and, finding the trapdoor open, closed it, and sat in a chair smoking for a long while, possibly an hour and a half or longer. The trapdoor, when open, was leaning against the chair, which was slightly to the south of it, and plaintiff says he had to close the trapdoor in order to get the chair. When plaintiff finished his smoke, he laid his pipe on the window sill, and went into the house and sat down in the middle or dining room. While there, defendant, in company with young Rouse, a plumber who lived in the north lower apartment, passed through the room on their way upstairs by means of the hall stairway. Plaintiff went into the kitchen, where the evening meal was eaten, and when he had finished he arose from the table and went out the kitchen door on to the porch, closing the door behind him. He was intending to get his pipe off the window sill and again sit in the chair and smoke. The first step lie took, however, after getting out the door, precipitated him into the cellarway, the trapdoor being open. As stated, he sues for the injuries received.

There was ample evidence tending to show that defendant opened the trapdoor in the afternoon, and that after plaintiff closed it, and after he had had his smoke and gone back into the house, the defendant again opened the trapdoor after dark and left it open, and that when plaintiff returned to the porch for another smoke, thinking it was closed, he fell and was hurt.

The defendant himself testified that he came there in the afternoon to fix the plumbing in the kitchen, and that it became necessary to turn the water off and on in the cellar, and that he went down there through the outside stairway two or more times, and that he closed the trapdoor each time except once, when he met plaintiff's wife and Mrs. Rouse from the other apartment going down into the cellar. The latter, testifying for plaintiff, said they did go into the cellar that afternoon about 4 o'clock to look at some curious old furniture stored in there, and when they came out they left the trapdoor open, thinking that defendant was not through going down there, and Mrs. Rouse says she thinks that he did go in there after that. However, whoever left it open this time, whether defendant did or the ladies, it apparently was prior to the time plaintiff says he shut the door and had his smoke on the porch.

Defendant also admits that after he got through putting some rubbers in the kitchen sink he waited about the building until young Rouse returned home, which he did about 6 o'clock, and that after Rouse had eaten supper they both went over to plaintiff's apartment, and Rouse examined the work defendant had done in the kitchen, and that while Rouse was doing this, he, defendant, went to the basement and turned the water off, but that when he came out he closed the trapdoor; that he again went down to turn the water on, but that he again shut the door; that they both then went up stairs to see about the plumbing up there, and in course of the work it became necessary to again go into the basement, but that he again shut the trapdoor when he came out.

Young Rouse, however, testified that while he was at work in the kitchen, the defendant lighted a candle and went to the cellar door on the porch, opened it, and went down into the cellar; that he came out and, with no stop of any kind at the door, came on into the house, and witness did not hear him shut the trapdoor. The door from the kitchen to the porch was open, and he could hear defendant open the trapdoor, but did not hear him close it. He testified that defendant went back to the basement and turned the water on, and again when he returned witness did not hear him close the door. Rouse also testified that defendant did not go to the basement while they were up stairs; that there was no occasion for the water being turned off then, as they were working with the lavatory drain pipes up stairs, and that defendant remained up stairs until after the plaintiff's fall. He testified that plaintiff was in the middle room when he and defendant went up stairs; that he merely spoke to plaintiff as they passed; that nothing else was said to him; and that in about 15 minutes he came down to his own apartment to get a piece of wire, and then heard a cry for help, and went out on the porch and found plaintiff lying at the bottom of the stairway. After getting plaintiff out and onto the bed, he reported the fall to defendant, who was still up stairs; that the defendant said, "Well, there aint no use in me going down; I can't do anything now;" that they then concluded their work up stairs, and then went to his apartment; that as defendant was leaving, witness' mother asked defendant if he was not going in to see the plaintiff. Defendant said he would if witness would go with him. They went in where plaintiff was lying on the bed, and the latter said to defendant: "You ought to have notified us that you had left that cellar door open out there," to which defendant replied, "Why you ought to have known that I opened the door." This conversation was also testified to by others than Rouse. The defendant, however, denied saying this. There was therefore ample testimony to justify the jury in finding that, while plaintiff was in the middle room where he had gone after shutting the cellar door, the defendant opened it and left it open, and that shortly thereafter plaintiff fell into the opening thus left in the porch floor.

There is no merit in the contention that the court should have sustained defendant's demurrer to the evidence. The ground thereof, now considered, is that plaintiff was guilty of contributory negligence as a matter of law. While the basement was for the common use of the plaintiff's family and at least the family overhead, there is no showing that it was being so used thus early in the fall. The plaintiff came to the premises about the middle of May, 1915, and there was evidence that he had never seen any one use the...