Sherman v. Bobrecker

• Decision Date: 13 April 1959
• Docket Number: No. 1,No. 46921,46921,1
• Citation: 322 S.W.2d 898
• Parties: Charles SHERMAN, Plaintiff-Respondent, v. Samuel BOBRECKER, Defendant-Appellant
• Court: Missouri Supreme Court

Page 898

322 S.W.2d 898

Charles SHERMAN, Plaintiff-Respondent, v.Samuel BOBRECKER, Defendant-Appellant.

No. 46921.

Supreme Court of Missouri, Division No. 1.

April 13, 1959.

Al. Lebrecht, Albert Thomson, Kansas City, for appellant.Davis, Thomson, Vandyke & Fairchild, Kansas City, of counsel.

John P. Zimmerman, Kansas City, Rufus Burrus, Independence, for respondent.

VAN OSDOL, Commissioner.

PlaintiffCharles Sherman had verdict and judgment for $10,000 for personal injuries sustained when he, a tenant, having stepped through the doorway at the front entrance of defendantSamuel Bobrecker's three-story, six-apartment building, fronting westwardly on Charlotte Street in Kansas City, stumbled over a child's tricycle, fell and was injured.

Plaintiff's case was submitted to the jury on the theory of negligence of defendant in failing in his assumed duty to illuminate the entrance and the small front lower foyer or lobby and upper halls of the building, which entrance, lobby and halls were used in common by plaintiff and other tenants, occupants of the building.It was submitted that by reason of the dark, unlighted condition the entrance and lobby or hall was not reasonably safe, and that the condition directly caused plaintiff to fall over the child's tricycle which had been left on the lobby floor.

Defendant-appellant contends plaintiff's own testimony shows that, as a matter of law, he was contributorily negligent in proceeding through the entranceway and into the dark lobby without watching where he was going; and that, consequently, the trial court erred in submitting plaintiff's case to the jury.Complaint is also made of the trial court's admission into evidence of two ordinances, parts of the Building Code of the City of Kansas City.These ordinances, defendant says, were immaterial, irrelevant to the issues, and the admission of them into evidence was prejudicial to defendant.

Defendant's apartment building is entered at the center of its west front.There are three tiers of apartments on either (north and south) side of the building.The first-floor lobby or hall is somewhat irregular in shape, but the area of its floor is approximately eight feet square and, as one enters the door at the front entrance, one may ordinarily see five marble steps at the east end of the lobby which lead up to the landing at the first-floor level.To one's left, as one passes eastwardly through and from the front door, there is a panel with bells and speaking tubes set in the north lobby wall, the lower edge of which panel is approximately one foot above a marble wainscot an inch and a half thick and extending up approximately thirty-eight inches from the lobby floor.

The entrance, and lobbies of halls of each floor are illuminated by one lighting system which is controlled (that is, turned on and off) by a switch located in the basement.The lights at the entrance and in the halls are customarily turned on in the evening by defendant's part-time manager, Mrs. Samuel Rosenberg, or by the janitor who has part-time duties in servicing the building.

Samuel Rosenberg is defendant's stepson.Mr. and Mrs. Rosenberg and family occupy the 'first floor, south' apartment in defendant's building.Plaintiff and wife since 1939 had occupied the second floor, south.

There was evidence tending to show that at approximately nine-fifteen on a June evening plaintiff and wife returned from shopping and approached the entrance door of defendant's building.The outside light over the entrnace door was not turned on and there were no lights in the halls.Plaintiff looked through the open outer door of the Rosenberg apartment, which door opens directly out on the porch or gallery at the front of the building, and called to them to turn on the lights, but they did not hear--their television was on 'very loud.'Plaintiff then opened the screen of the front entrance and stepped into the lower lobby or hall intending to ring the Rosenbergs' bell which was the third from the left in the panel in the north wall, and approximately five feet from the entrance door.The hall was dark.

Although a system for lighting seems to have been installed with fixtures at the outside above the entrance door and in the hall of each of the three floors of the building, no switch is available to tenants.The switch provided for turning the entrance and hall lights on and off, as stated, is in the basement.Ordinarily the basement is locked.Keys are in the possession of Mrs. Rosenberg and the janitor.

As plaintiff walked into the dark hall he was trying, with his hand out in front of him, to feel for the panel and the Rosenbergs' bell, the while also groping for the upper edge of the marble wainscot for support.He was intending to ask the Rosenbergs to turn on the hall lights.As he was thus moving northeastwardly toward the panel in the north wall of the lobby he stumnled over the tractor-tricycle which had been left on the hall floor, apparently by the Rosenbergs' yound son Michael.Plaintiff theretofore had never seen the tricycle, or other obstruction on the lobby floor.Plaintiff fell and struck his hip and back on the marble steps east of the lobby floor, and was seriously injured.He had not looked down at the floor but, had he looked, he could not have seen the floor or the tricycle thereon--'You couldn't see your hands or feet.'

In support of his contention that plaintiff should be adjudged guilty of contributory negligence defendant-appellant has cited Shuck v. Security Realty Co., Mo.App., 201 S.W. 559;Senseney v. Landay Real Estate Co., 345 Mo. 128, 131 S.W.2d 595;andO'Dell v. Dean, 356 Mo. 861, 204 S.W.2d 248.In the Shuck case a subcontractor's employee, plaintiff, had built a concrete stairway around a stairway wellhole with no handrail and a few days later, returning to make repairs in a sidewalk in front of the same building, attempted to go down the stairway which he himself had built.It was 'pitch-dark in there.'He did not attempt to follow the staircase wall with his hand but seems to have reached for a handrail, which he had no reason to think was there, to protect himself from falling into the stairway well which he must have known was there.In the Senseney caseplaintiff approached a closed elevator-shaft door--it wasn's very bright in there--and, having opened the door, stepped into the elevator shaft without taking the precaution to determine that the elevator cab was at that floor.In the O'Dell case, wherein it was said a passenger cannot walk 'blindly' through an elevator door, plaintiff knew the location of the elevator and approached and passed through the partially closed elevator door without taking any precaution, in the exercise of ordinary care for his own safety, to determine if the elevator was at the level of the floor.

In our case, plaintiff had lived in defendant's apartment building for several years and was familiar with the construction of the entrance and floor and walls of the lower entrance lobby or hall.He knew there was no hazard of injury because of the physical facilities in the lobby or hall, such as a stairway well or an elevator shaft.He did not know the child's tricycle was on the lobby floor; during his tenure there, he had not seen a child's toy or other obstruction on the lobby floor.Obviously, the hazard of danger due to the presence of the child's tricycle, the presence of which plaintiff had no reason to anticipate, was unlike the hazards of the open stairway well and the elevator shafts of which plaintiffs Shuck, Senseney and O'Dell should have, in the exercise of ordinary care, anticipated or foreseen.Of course, as defendant herein urges, plaintiff could have struck a match before passing through the door into the dark hall and looked down on and examined the floor; but, as we have intimated, in this...