Rose v. Gunn Fruit Company
| Decision Date | 04 February 1919 |
| Citation | 211 S.W. 85,201 Mo.App. 262 |
| Parties | MARY ROSE, (Plaintiff), Respondent, v. GUNN FRUIT COMPANY, LOUISE BIDDLE and KATHERINE BIDDLE BARRETT (Defendants), LOUISE BIDDLE and KATHERINE BIDDLE BARRETT, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. K Koerner, Judge.
Judgment reversed and cause remanded.
Geo. W Lubke and Geo. W. Lubke, Jr. for appellants.
(1) An abutting owner has the right to construct and maintain a cellar opening in the sidewalk and is not liable for injuries resulting to a passerby or to a visitor of the tenant or to anyone not connected with the property. If the premises become dangerous by the manner of its use by the tenant in possession the landlord is not liable for injuries resulting from such use. The right to construct the opening and to lease it out can be exercised without license from the municipality. Gilleland v. Railroad, 19 Mo.App. 412; Gordon v. Peltzer, 56 Mo.App. 412; Staelze v Sweringen, 90 Mo.App. 588; Walter v. Donneby, 93 Mo.App. 7; Johnson v. Snow, 102 Mo.App. 238; Eyre v. Jordan, 111 Mo. 424 and cases cited from Illinois and N.Y.; Felhauer v. City, 178 Mo. 635; Kilroy v. St. Louis, 242 Mo. 79; Bender v. Weber, 250 Mo. 551; Young v. Kansas City, 27 Mo.App. 101; Hovelman v. Kansas City Horse Car Co., 79 Mo. 632; Haynes v. Trenton, 108 Mo. 123; St. Louis v. Heitzeborg Packing Co., 141 Mo. 375. And an action of tort is not maintainable by the lessee for personal injuries suffered by him because of a breach by the landlord of his covenants. Glenn v. Hill, 210 Mo. 291; Korach v. Loeffel, 168 Mo.App. 414; Murphy v. Dee, 190 Mo.App. 83. (2) It is error to give contradictory instructions, and error in one part is not cured by a correct statement of the law in another part. Casey v. Steinmeyer, 7 Mo.App. 560; State v. Foley, 12 Mo.App. 436; Stone v. Hunt, 94 Mo. 480; Pim v. Transit Co., 108 Mo.App. 717; Flynn v. Transit Co., 113 Mo.App. 185. (3) The plaintiff herself was guilty of negligence and the damages assessed by the jury show prejudice and passion. King v. Wabash Railroad, 211 Mo. 1; Staelze v. Sweringen, 90 Mo.App. 588.
Frank A. Habig for respondent.
(1) (a) The owner or landlord's liabilities in respect to possession are in general suspended as soon as the tenant commences his occupation. But when injuries result to a third person from the faulty or defective construction of the premises, or from their ruinous condition at the time of the demise, or because they then contain a nuisance, even if this only becomes active by the tenant's ordinary use of the premises, the landlord or owner is still liable notwithstanding the lease. Taylor, Landlord & Tenant (8 Ed.), sec. 174; Fehlhauer v. City, 178 Mo. 646; Buesching v. Gas Light Co., 93 Mo. 219; City v. Miller, 78 Mo.App. 67; O'Brien v. Heman, 191 Mo.App. 477, 499; O'Brien v. Burroughs, 191 Mo.App. 501, 506; Stoetzele v. Swearingen, 90 Mo.App. 588; Tate v. Railroad, 64 Mo. 155; Anderson v. Dickie, 1 Robertson 238; Shipley v. Fifty Assn., 101 Mass. 252-3-4; Earl v. Deask. 126 Iowa 363; Timlin v. Standard Oil, 126 N.Y. 514; Gordon v. Peltzer, 56 Mo.App. 603; Benjamin v. Railway, 133 Mo. 291; Johnson v. Snow, 201 Mo. 450; Barr v. City, 121 Mo. 32; Kirkpatrick v. Knapp & Co., 28 Mo.App. 431; Irwin v. K. C., 173 Mo.App. 711; Jegglin v. Roeder, 79 Mo.App. 434. (b) The mere fact that another person concurs or co-operates in producing the injury, or contributes thereto, in any degree, whether large or small, is of no importance. It is immaterial how many others have been in fault, if the defendant's act was the efficient cause of the injury. Benjamin v. Railroad, 133 Mo. 291; Daneschocky v. Sieber, 195 Mo.App. 470; Barr v. City, 105 Mo. 557; Buckner v. Horse, Etc., 221 Mo. 710. (2) (a) Proof of ordinance and proof of failure to comply with same constitutes negligence per se. Ryan v. K. C., 232 Mo. 471, 485; Skinner v. Sifel, 55 Mo.App. 15; Perigo v. City, 185 Mo. 274. (b) Violation of this identical ordinance constitutes negligence. Perigo v. City, 185 Mo. 274. (c) Since plaintiff was relying on the ordinance, a finding that defendant had exercised a less degree of care than that which is imposed would not relieve him from liability for negligently failing to comply with the ordinance. Williamson v. Mulins, 180 S.W. 395. (3) (a) The instructions given by the court were not conflicting or misleading. (b) Where the verdict and judgment is for the right party, then error in an instruction given is not prejudicial. (4) (a) A pedestrian has the right to the full and free use of the entire width of the sidewalk to travel upon. Powers v. Penn, Etc., 91 Mo.App. 67. (b) And the sidewalk should be kept free from merchandise. Straub v. City, 175 Mo. 413; Walker v. K. C., 99 Mo. 652. (5) (a) An owner or landlord of a house is in contemplation of law for certain purposes always in possession, although it is actually occupied by his tenant. Kilroy v. St. Louis, 242 Mo. 86. (b) By failing to properly object before or at the trial, of the error complained of, defendant waives the objection. School District v. Wallace, 75 Mo.App. 322. (6) Plaintiff was not guilty of contributory negligence. Perigo v. City, 185 Mo. 274. (7) The damages were not excessive.
ALLEN, J. Becker, J., concurs; Reynolds, P. J., dissents from the first paragraph of the opinion, in a separate opinion filed, but concurs in the second paragraph thereof.
This is an action to recover damages for personal injuries sustained by plaintiff, on December 17, 1912, by reason of falling into an opening or cellarway in the sidewalk on the north side of Carr Street, a public street in the city of St. Louis, in front of and adjoining a building and premises owned by the defendants Louise Biddle and Katherine Biddle Barrett on the northwest corner of Third and Carr Streets, and known as 1101-1105 Carr Street. The suit was instituted against Louise Biddle and Katherine Biddle Barrett as owners, and against the Gunn Fruit Company, a corporation, as the lessee of the premises. During the progress of the trial it appeared that the Gunn Fruit Company, having, in 1915, sold its business to another corporation, was no longer in existence. At the close of all the evidence in the case plaintiff dismissed the action as to said lessee. There was a verdict and judgment for plaintiff against the defendant owners, who have brought the case here by appeal.
The petition counts upon negligence on the part of the appellants in failing to provide said opening with a cover or grating of the character required by an ordinance of the city of St. Louis, being section 1292 of article 12 of the Revised Code of the city of St. Louis (1912). This ordinance, which appellants are charged to have violated, provides as follows:
The evidence discloses that the appellants had owned the building and premises involved for a great many years prior to plaintiff's injury. In 1911 they leased the property to the Gunn Fruit Company and one Robertson and one Sommer who were interested in that corporation. At the time of plaintiff's injury the Gunn Fruit Company was occupying the premises under this lease, though Robertson and Sommer had assigned their interest in the leasehold to certain persons who had acquired their interest in the fruit company.
On the evening of December 17, 1912, plaintiff was on her way to her home from her place of employment nearby, and in passing over the sidewalk in front of this building, in a westerly direction, fell into an opening or cellarway in the north side of the walk adjacent to the building. This opening in the sidewalk, it is said, was about four and one-half feet in length, from north to south, and about four feet in width, surrounded by stone flagging or coping, and afforded access to the cellar or basement of the building by means of steps leading from the sidewalk. One witness, however, said that the opening extended only about three feet from the building, leaving about six feet of the sidewalk to the south thereof. The testimony shows that a porch extended from the building over this sidewalk. And at the time of plaintiff's injury the sidewalk was to some extent obstructed by Christmas trees placed along the south sides thereof and also, it is said, along the building at the north edge thereof. There is testimony for plaintiff tending to show that these trees obstructed a large portion of the sidewalk toward the curb, leaving a rather narrow passageway on the north side of the walk, but testimony for defendants tends to show that the trees at the outer edge of the sidewalk were, for the most part, in the street, and obstructed the sidewalk but little.
Plaintiff testified that it was 5:30 P. M. when she fell into the opening, and that it was then "very dark" at this place--so dark that she could not discern that the opening existed; and that there was then no cover over this hole. From her testimony it appears that as she stepped into the opening she fell with her feet, or one foot upon the steps leading into the basement, and that her body struck the west...
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