Roman v. King

• Decision Date: 23 July 1921
• Citation: 233 S.W. 161,289 Mo. 641
• Parties: KATHERINE D. ROMAN, Appellant, v. JOHN C. KING
• Court: Missouri Supreme Court

233 S.W. 161

289 Mo. 641

KATHERINE D. ROMAN, Appellant, v. JOHN C. KING

Supreme Court of Missouri, First Division

July 23, 1921

Appeal from St. Louis City Circuit Court. -- Hon. M. Hartmann Judge.

Reversed and remanded.

W. B. & Ford W. Thompson for appellants.

(1) The instruction given for the plaintiff in a negligence case (saving and excepting in cases of res ipsa loquitur) must confine the jury to the specific acts of negligence set out in the petition, and it is error to give a general instruction to the effect that if they find the defendant was negligent then plaintiff was entitled to recover. Likewise where there is a good and sufficient plea of contributory negligence, wherein the specific acts of contributory negligence are stated, the court should not give a general instruction to find for the defendant, if they find that plaintiff was also guilty of negligence contributing to the injury, without restricting the finding to the acts of contributory negligence thus specifically stated in the answer. Buesching v. Gaslight Co., 73 Mo. 219; Mitchell v. Clinton, 99 Mo. 152; Fulks v. Railroad Co., 111 Mo. 335; Baker v. Ry. Co., 147 Mo. 140. (2) Defendant's instruction No. 4 is erroneous and should not have been given. There is no evidence that plaintiff "after moving the tread from the position it occupied on the risers supporting it" then undertook to place said tread back in its proper place, but did so in such a manner that when she shortly thereafter passed down said steps and went upon said tread, it became displaced and caused her to fall. The evidence upon this feature of the case is all one way and uncontradicted, and to the effect that she placed it back in position upon the riser, just as it had been before she moved it. Further, the instruction assumed that the step before she moved it had been in its proper position, which assumed that it had been perfectly safe and would have remained perfectly safe but for the "manner" in which she placed it back, which assumption entirely contradicts the entire facts disclosed by the record. According to plaintiff the step was so loose and had remained so loose for a very long time, that one end of it could be moved out six or seven inches, while according to defendant (his mother-in-law and sister-in-law being the witnesses who shed this light upon it for defendant) it was so loose that plaintiff pulled it off the riser entirely and held it up in the air. Yet, this instruction told the jury that the step was so safe with that step resting, even thus loose, upon the riser as to exonerate the defendant for failure to repair it and make it reasonably safe, if only the jury could find that the plaintiff had placed this step back in such a manner that it afterwards slipped out as she was descending the stairway. (3) The principle of law upon which the petition of the plaintiff is based, and upon which the jury were instructed on behalf of the plaintiff, is that announced in the decision of Miller v. Geeser, 193 Mo.App. 1, and Home Realty Co. v. Carius, 224 S.W. 751.

Kinealy & Kinealy for respondent.

(1) If plaintiff was not entitled to recover, the question as to error in the instructions becomes immaterial. Giles v. Railroad, 212 S.W. 873; Bradley v. Tea & Coffee Co., 213 Mo. 320; Trainer v. Mining Co., 243 Mo. 359; Hurck v. Railroad, 252 Mo. 39; Frick v. Ins. Co., 223 S.W. 643. (2) In no event can a landlord be held liable for injuries unless it is shown that he retained control of the alleged defective premises. Bender v. Weber, 250 Mo. 551; Kilroy v. City of St. Louis, 242 Mo. 79; McGinley v. Trust Co., 168 Mo. 257; Troth v. Norcross, 111 Mo. 630; Marcheck v. Klute, 133 Mo.App. 281; Land v. Hill, 157 Mo.App. 685. (3) Plaintiff in going upon the step in question was guilty of contributory negligence. 20 Cyc. 112; Town v. Armstrong, 75 Mich. 580; McGinn v. French, 107 Wis. 54; Martin v. Surman, 116 Ill.App. 282; O'Dwyer v. O'Brien, 43 N.Y.S. 814; Reams v. Taylor, 31 Utah 288; Wheat v. St. Louis, 179 Mo. 572; Woodson v. Ry., 224 Mo. 685; Cohn v. City of Kansas, 108 Mo. 387; Sindlinger v. City of Kansas, 126 Mo. 315. (4) To be "without fault" in doing an act comprehends the use of ordinary care. Burdoin v. Trenton, 116 Mo. 358. (5) A party may not complain of instructions which are in harmony with one given at his request. Tranberger v. Railroad, 250 Mo. 46; Gordon v. Park, 219 Mo. 600; Lange v. Railroad, 208 Mo. 458; Christian v. Ins. Co., 143 Mo. 460. (6) The proximate cause is the one which in a natural and continuous sequence produces the result. Hudson v. Ry., 101 Mo. 1. (7) A danger need not be glaring and imminent before a plaintiff can be found guilty of contributory negligence. Bradley v. Ry., 138 Mo. 293; Bennett v. Lime Co., 146 Mo.App. 565. (8) One who voluntarily assumes a position of danger does not exercise ordinary care. 29 Cyc. 519; 20 R. C. L. 108.

BROWN, C. Ragland and Small, CC., concur.

OPINION

BROWN, C. --

Suit for damages sustained by falling on the steps of a two-story flat building known as Numbers 3209 and 3209A North Newstead Avenue, in the City of St. Louis, owned and leased as residences by defendant. The plaintiff was tenant of the upper flat. A porch extended across the entire front on Newstead Avenue, which was reached from the street by a granitoid walk to the steps about the middle of the porch. These consisted of a lower step of granitoid, and four wooden steps leading from it to the porch floor. Each flat was reached by a front door leading into the house from this porch, which was not divided by rail or otherwise, but was common to both flats. There was also a back door, reached by stairs. The plaintiff occupied the upper flat as tenant from month to month of the defendant, the lower flat being occupied by a tenant holding by like tenure.

After stating these facts the petition proceeds: "That upon the eighteenth day of May, 1914, while plaintiff, in the exercise of ordinary care upon her part, was passing over and down said flight of wooden steps in going from the front door of said upper flat to the ground, and using said steps for the purpose of egress therefrom, in the usual and customary manner, without fault upon her part one of the wooden steps of the flight of wooden steps above mentioned became entirely loose and unfastened from the wooden carriage upon which said step was resting and slipped from under plaintiff's foot, and thereby plaintiff was thrown on a stone step at the bottom of said flight of wooden steps and fell in such manner that she sustained serious and permanent injuries to her body and nervous system."

After stating the nature of plaintiff's injuries which were serious the petition proceeds as follows:

"Plaintiff states that said flight of steps upon which she was injured were at the time of said injury in the possession of and under the control of the defendant and constituted a common stairway for the common use of defendant's tenants occupying the upper and lower flats of defendant's said two-story flat building, and that by reason thereof it was the legal duty of defendant to keep the same in a reasonably safe condition for the ordinary and necessary use of plaintiff as a tenant of the upper flat of said building. Plaintiff states that in violation of said duty said defendant negligently permitted said step to be and remain out of repair and in an unsafe and dangerous condition at the time of and for a long period of time prior to the date of said injury, in this, to-wit, that one of the boards constituting the step or tread of said common stairway on one side thereof was loose and unfastened by reason of the wooden carriage upon which said step rested having become so rotten and decayed that said board or step could not be nailed or fastened thereto, as it would not hold a nail driven into it on said side, and said board or step in its said loose and unfastened condition had become and was unsafe for persons lawfully using the same, and that defendant knew, or in the exercise of ordinary care could have known, that said step was out of repair and unsafe and in a dangerous condition."

Damages are alleged and asked in the sum of $ 25,000. The answer, after a general denial, pleads contributory negligence as follows:

"Further answering, defendant says that any injuries which plaintiff may have sustained upon the occasion referred to in the petition were due to her own negligence directly contributing thereto, in that shortly prior to the time she fell she negligently moved said step from the position it had theretofore occupied, and in that she negligently placed the board step in the place and position in which it was at the time she fell, and in that she negligently went upon said step knowing the condition in which same was at the time." Issue was joined by replication.

The four wooden steps leading up to the front porch were supported upon carriers of wood, and for a long time one of them had been loose at one end so that it could be moved out several inches in front of the riser beneath it. The tenants of the respective flats washed the steps alternately. The loose step had first been observed in that condition in December previous to the accident, which occurred May 18, 1914, and the plaintiff had, on several occasions, driven nails into the loose end, but the wooden carrier was so rotten that these would not take hold of it. Plaintiff, about two weeks before the accident, directed defendant's attention to its condition and told him she would move out unless he fixed it, which he promised but failed to do until after the accident occurred. Mr. King, the defendant, denied this, and says in substance that if a tenant should so address him he would tell him to move out.

On the day of the...