Saxon v. The St. Louis Transfer Co.

• Citation: 123 S.W. 104,145 Mo.App. 693
• Parties: MARY E. SAXON, Appellant, v. THE ST. LOUIS TRANSFER COMPANY, Respondent
• Decision Date: 30 November 1909
• Court: Court of Appeal of Missouri (US)

123 S.W. 104

145 Mo.App. 693

MARY E. SAXON, Appellant, v. THE ST. LOUIS TRANSFER COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

November 30, 1909

Argued and Submitted, November 1, 1909.

Appeal from St. Louis City Circuit Court.--Hon. Geo. H. Shields Judge.

AFFIRMED.

STATEMENT.--Action for damages for personal injuries sustained by plaintiff in falling down a flight of steps in an apartment house in the city of St. Louis. One George Kramer received notice from the Illinois Central Railroad Company, that it held a box of glass and two packages containing a kitchen cabinet, to his consignment, charges paid. Whereupon Kramer wrote to the defendant St. Louis Transfer Company, enclosing the notice of the railroad company, and continuing, "Please deliver the goods to 4948C Page boulevard." The defendant received this and thereupon sent the freight by one of its teamsters, with this dray ticket, as we will call it:

"George Kramer, Consignee,

St Louis, Mo., 4948 Page.

1 Box glass, 2 Packages K. Cabinet. Weight 325. Rate 38, paid. Drayage, St. Louis Depot to Store Door.

St Louis Transfer Company.

Paid April 3, 1907, 75 cents."

Number 4948 Page Boulevard is an apartment house, containing four apartments, two downstairs and two upstairs. The apartments are numbered 4948A, 4948B, 4948C and 4948D. That of the Kramers is numbered 4948C, and is upstairs on the second floor and there Kramer and his wife resided at the date of delivery of the freight. The driver of defendant's wagon arrived at this apartment house about two o'clock on the day the accident occurred, rang the door bell, and Mrs Kramer, the wife, appeared, and found the teamster there, who announced that he was the driver for the St. Louis Transfer Company and had a box in his wagon for Mrs. George Kramer, and asked her if she was Mrs. George Kramer. Mrs. Kramer told him she was; whereupon the driver went down to the street and out to his wagon and started in with the box. It appears that the main entrance to these flats was on a level with the sidewalk and from this entrance, which appears to be a lobby, a flight of five steps ascends to the landing and hallway of the first floor of the flats. This upper landing appears to have been about six feet wide and about four deep. From this first floor hallway, another flight of steps leads up to the second floor, where the Kramer's apartments are situated. When the driver arrived at this landing with the crate of goods, Mrs. Kramer told him she lived on the second floor above, and wanted the package carried up the second flight. The driver said he did not have to carry the box even into the house, that they only had to leave it at the door. Thereupon Mrs. Kramer said: "Well, what am I going to do with it, I cannot bring that box up, and he did not say anything more to me and I said: 'I would like to know how I could get it up; I did not go right and say I would pay him, but I gave him to understand that I would be willing to do something, if he would bring the box up to me. The box was then on the first landing where it finally remained. He hemmed and hawed, I really don't know what he did say, but he made me understand that he would not bring it up and I was a little bit afraid of him, and he brought a receipt, I signed it, or rather I came down to where the box was, because he did not come up again, and I signed the receipt, and that's all there was to it.' " Mrs. Kramer further testified that before signing, she protested against receipting for the box unless it was delivered at her own landing. The receipt which she signed is as follows: "Received of St. Louis Transfer Company, the following articles in good order: St. Louis 4-3-1907. J. C. B. 6451. George Kramer, 4948 Page avenue. 1 box glass, 2 pieces K. cabinet. Freight nothing: Transfer 75 cents. Total .75. (Signed) George Kramer." Whereupon the driver gave Mrs. Kramer the dray ticket heretofore set out. The crate or package is described as being of such dimensions as practically to fill the landing, leaving but a narrow space on one side to walk around it. Mrs. Kramer testified that she had to push her way through between it and the steps in the same manner that the plaintiff did, "but I suppose she (plaintiff) pushed it over more, or something." The crate remained on the landing between two and three hours, the testimony indicating that it was there from two p. m. to five-thirty p. m., when the accident happened to plaintiff. Whether it had been shoved around or moved from its original position, is not in evidence. About five-thirty p. m., Mrs. Saxon, the plaintiff, was coming down the stairway from her apartment on the second floor and when she got to the lower landing, where the crate or box rested, she saw the box there. She said the box was about three or three and one-half feet high and just the length of the space that was left between the end of the box and the railing that she came down. She thought it filled the landing pretty well from the back to the front as well as from side to side, but at the east end there was a space of ten or twelve inches. She started through this space to go on down the steps to the front or entrance door. In passing through this space, as she said, and about to go down the first or top step, she supposed she lost her balance, and in trying to save herself, threw her hand out and on the box, so that her weight rested on the corner of the box. The box tipped forward and she fell the full length of the five steps down to the floor below; that is, down to the floor of the lobby. It appears that there were cleats or slats on the under side of the box, running lengthwise, which rested on the floor of the landing, and the edge of the box appears to have projected about twelve inches over the edge of the top stair. The bottom of the box to which the strips were fastened, rested on the floor, but there were no strips on that part of it which projected over the top of the landing. The weight of the plaintiff, thrown on the corner of it, tilted it forward, not however carrying the box down, as it seems that when her weight was taken off of the corner, the box settled back to its former position. These landings and stairways were in the common use of all the tenants of the flats. After the accident, "two boys," as Mrs. Kramer testified, carried it up to her landing. At whose instance they did this, is not in evidence. Plaintiff sustained severe injuries, not apparently being permanently disabled, but still suffering, and she was put to expense for medical attendance, and had also lost time and earnings from being interrupted in her business of sales agent selling statuary on commission. She accordingly instituted this action against the St. Louis Transfer Company, setting out the facts and charging that defendant "caused and permitted to be placed and to remain on the landing," the box or crate, and "that said box or crate, as placed was dangerous and defendant knew and by the exercise of ordinary care could have known that it was dangerous," and that plaintiff before she placed her hand upon the box or crate was "unaware that it was so without support or dangerous and had no reason to suspect the same;" that while plaintiff was attempting to go down the stairway and pass the box, "by reason of the interference and negligently arranged position of said box or crate," she slightly lost her balance; that endeavoring to immediately regain control of herself, and the box or crate appearing to be safe and firmly placed on the landing and capable of sustaining any strain that plaintiff would put on it, she placed her hand and weight on the box and that "immediately upon plaintiff so placing her hand thereupon, (it) tilted forward and aided in causing plaintiff to, and by reason of which said tilting, and by reason of the aforesaid negligently arranged position and interference of said box or crate, plaintiff did then fall and violently strike said stairway and the floor below same; that at all times herein mentioned plaintiff exercised due and proper care and caution." Setting out her injuries and the effect of the accident on her, plaintiff claims judgment for $ 4500.

The answer, after admitting the incorporation of defendant, was a general denial of all other allegations. At a trial before the court and jury, there was evidence tending to establish the facts as they are hereinbefore set out. During the progress of the trial, Mrs. Kramer was asked by counsel for plaintiff, if before the box was placed on the first landing she knew of any custom in the city of St. Louis providing that articles of this kind should be left otherwise than on the premises of the person to whom they were consigned. This was objected to by defendant as immaterial, the objection sustained and plaintiff excepted. On re-direct examination, Mrs. Kramer was asked what the teamster had said about signing the receipt, to which witness answered: "It was what he didn't say that made me sign it. He didn't say anything, but he looked so rough and hateful about it that I didn't know what else to do but sign the receipt." On motion of defendant's counsel, this answer was stricken out as immaterial, and plaintiff excepted. Plaintiff also offered in evidence section 1224, of chapter 12, article 11, of the Revised Code of St. Louis (Ordinance No. 22,902), which is to the effect that any person who shall himself or by another "place upon any highway or other public place, any obstruction not authorized by ordinance, . . . shall be deemed guilty of a misdemeanor and upon conviction shall be fined." This was objected to by defendant as incompetent and irrelevant and not tending to prove any of the issues of the case, and the objection was sustained by the court, plaintiff e...