Patton v. Eveker

• Decision Date: 21 June 1921
• Docket Number: No. 16651.,16651.
• Citation: 232 S.W. 762
• Parties: PATTON v. EVEKER et ux.
• Court: Missouri Court of Appeals

232 S.W. 762

PATTON v. EVEKER et ux.

No. 16651.

St. Louis Court of Appeals. Missouri.

June 21, 1921.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by Isabelle Patton against Henry B. Eveker and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

Thos. E. Mulvihill and R. M. Nichols, both of St. Louis, for appellants.

Curlee & Hay and Charles A. Powers, all of St. Louis, for respondent.

DAUES, J.

This is an action for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of the defendants. Plaintiff recovered a judgment of $1,500, and the defendants, after the overruling of their motion for new trial and motion in arrest of judgment, appeal.

The petition sets out that the defendants own the premises at 4338a Manchester avenue, St. Louis, and that plaintiff occupied the property as tenant; that defendants voluntarily undertook to repair the toilet, and in doing this work it is alleged defendants were negligent. The negligence is charged as follows:

"That thereupon defendants caused said repairs to be made, but the servants and employés of defendants having charge of and doing said work for and on behalf of defendants, in the wrapping of said wire around said rubber tube on the said down pipe, carelessly and negligently made the ends of said wire, twisted together as aforesaid, to project out from said tube, and finished and left said work as completed with said wire ends so projecting, so that persons and tenants of defendants, and the plaintiff, were likely, as a natural and probable result thereof, in cleaning said pipe and rubber tube, and around the same, where said wire projected as aforesaid, to injure their hands or fingers by scratching or penetrating the flesh.

"That thereafter, on the 20th day of March, 1915, while plaintiff was in the course of her ordinary household duties of cleaning said bathroom and going about said duties in the ordinary manner of a reasonably attentive and cleanly housekeeper, and in said manner working around and about said pipe and rubber tube for said purpose, and without knowledge that said repairs had been so negligently and carelessly done as aforesaid, or that said wire ends so projected, and all times in the exercise of ordinary care, the little finger of plaintiff's right hand came upon and against said wire projection, whereby the said wire penetrated the skin and flesh of said finger, the said injury being caused by reason and as the direct result of the carelessness and negligence of the defendants through their said servants and employés, as aforesaid."

The petition then sets out the immediate treatment of the wound by a physician, and that the course and the resultant consequence of the infection was an almost completely maimed hand and arm; sets out the prior good health of the plaintiff, and the present permanent disability of her arm; and concluding with an appropriate prayer for damages in the sum of $10,000.

Having unsuccessfully demurred to the petition, the defendants filed an answer, being a general denial, coupled with a plea of contributory negligence, to which plaintiff filed a reply, which denied the averments of the answer generally.

The proof closely followed the allegations of the petition. The evidence tends to show that the defendants by the entirety owned the flat in which the plaintiff was a tenant. There was a leak in the bathroom, and the plaintiff notified the defendant Mrs. Eveker of such fact. Within a few days afterwards defendant Eveker and his two sons went upstairs to the bathroom used by plaintiff to repair the leak. The actual work of repairing was done, principally, by the son, Charles, who had been an apprenticed plumber. In making the repair the young man replaced an old rubber tubing with a new one, which he fastened to the metal down pipe with a wire, wrapping and twisting the ends of the wire to make same hold, leaving the ends of the copper wire with sharp points extending out one-half or three-fourths of an inch.

The toilet was in the corner of the bathroom; the flush box was on the wall above, and was connected to the bowl or stool by a metal down water pipe connected by a tubing. This was out of repair. The tube or rubber "L" was slightly lower than the seat back of the closet in the corner. There was only one window in the bathroom, which contained a frosted glass partially covered by a window shade. The ends of the projecting wires were on the opposite side from the window, and were left protruding out towards the bathtub. The distance between the bathtub and the closet was not wide enough to allow a person to go between same. The day was described as being a dark one, but not dark enough to light the gas. On March 20, 1915, being a few days after the repair had been done by defendants, plaintiff, as was her custom, undertook to scrub and clean the bathroom. The plaintiff was not in the bathroom at the time same was repaired, nor had she been told of the place or manner of the repairing of the leak, and in cleaning the wall fixtures and pipes in the bathroom with a rag she got on her knees in her usual way, and reached around and wiped the wall and the pipes, and in doing so she struck her hand against the projecting copper wires and pierced the little finger of her right hand. She instantaneously withdrew her hand, and looked to see the point where she was injured, and found it to be one of the protruding copper wires. She examined the point, and found that the wires were protruding out from the rubber pipe, and that one point extended out further than the other, and that the wire had been cut on the slant, leaving the point very sharp, and was from one-half to three-quarters of an inch in length.

Plaintiff testified that she did not know at what point nor in what manner the repairs had been made until she was injured, nor had she been told anything about by defendants or any one; that no one had performed any work about the bathroom since defendants had repaired this place. Plaintiff identified and exhibited to the jury a model which, she said, depicted the condition of the wires as they existed at the time she was injured. Plaintiff testified her hand and arm quickly developed an infection which, even under the care of prompt medical attention, resulted in blood poison and caused plaintiff much suffering and a severe and permanent injury to her hand and arm.

Plaintiff testified that the points of the wires remained protruding until about four days after the injury, when plaintiff's son turned the ends down. Medical diagnosis traced the infection to the puncture at the point plaintiff insists she was injured. The injuries are permanent.

It was admitted by the son of the defendants who did the repair work that if the points protruded "It was a bad job." Two plumbers, testifying for the defendants, likewise admitted that the points (if left extended) should have been turned down. Defendants attempted to show that the ends were not left as plaintiff claims, and insisted that plaintiff was guilty of contributory negligence in not looking to see the wires, and that there was no negligence of defendants.

The petition, we think, states a cause of action, and the demurrer to same was well ruled. The evidence substantially supported the petition and made a case for the jury.

The defendants as landlord, in the absence of a contract to do so, were under no obligation to make repairs to the rented premises, but, having voluntarily undertaken to do it, are liable for injury to the plaintiff, the tenant, resulting from the...