Shouse v. Dubinsky

• Decision Date: 04 May 1931
• Docket Number: No. 17166.,17166.
• Parties: SHOUSE v. DUBINSKY et al.
• Court: Missouri Court of Appeals

38 S.W.2d 530

SHOUSE v. DUBINSKY et al.

No. 17166.

Kansas City Court of Appeals. Missouri.

May 4, 1931.

Appeal from Circuit Court, Cole County; Henry J. Westhues, Judge.

"Not to be officially published."

Action by Harold Shouse, a minor, by his next friend, Leslie W. Shouse, against Barney Dubinsky and another. Judgment for plaintiff, and the named defendant appeals.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg, both of St. Louis, for appellant.

H. P. Lauf, of Jefferson City, for respondent.

BOYER, C.

Plaintiff sued appellant, who was the lessee of a theater building, and another, who was the owner of the building, to recover for personal injuries sustained by plaintiff on account of alleged negligence of both defendants. The petition states that the defendants are the owners of and in possession and control of a certain building located at the corner of High and Jefferson streets in Jefferson City, Mo., known as the Jefferson Theater, which was operated by them; that plaintiff was injured October 31, 1928, while walking on Jefferson street in a northerly direction on the sidewalk which extends along the side of said building; that defendants maintained certain iron steps on the side of the building which "were hung over on or about 4 or 5 feet from the said sidewalk" on which plaintiff was walking; that said steps were erected and used by defendants in the operation of the theater, and extended over and blocked the sidewalk; that they were carelessly and negligently maintained, used, and operated; that defendants negligently failed to provide lights so the steps could be more clearly seen, and negligently left the steps unguarded and hanging so low over the sidewalk that pedestrians could not pass with safety, and by reason thereof the sidewalk was made unsafe for the traveling public; that defendants should have caused same to be clear of the sidewalk so the same would have been reasonably safe for persons passing over it; that, while plaintiff was traveling upon the sidewalk in the course designated to be traveled by pedestrians, and while in the exercise of due care and without any fault on his part, plaintiff's face struck the end of the steps protruding over the sidewalk, and the side of his face was thereby cut through and injured permanently, all of which resulted from the negligence of defendants; that plaintiff was compelled to expend money for doctor and hospital bills and lost his wages and earnings for a number of weeks.

The answer of appellant was a general denial, a plea of contributory negligence, and the lease agreement which was in effect at the time of plaintiff's injury, by the terms of which the lessor assumed all liability that may be occasioned by falling chimneys, falling walls or fixtures now on the outside of said building, by reason of which appellant's codefendant assumed liability for plaintiff's injuries, if any, and that the lessee was not liable. Appellant's co-defendant, the owner of the building, also filed answer in which he denied control of the building on the date of plaintiff's injury or that it was being operated under his direction or supervision; that the building had been leased to appellant for a term of five years from January 31, 1926, on which date the lessor surrendered possession to the lessee who remained in possession and control thereafter, and that the steps in question were entirely under the control of the lessee; denied any negligence on the part of the lessor; and pleaded contributory negligence on the part of plaintiff.

The case was tried before a jury, which returned a verdict in favor of plaintiff and against defendant Barney Dubinsky for $1,500, and further found in favor of the defendant owner. Judgment followed accordingly, and Barney Dubinsky duly appealed. The errors assigned and presented in the brief are: (1) The court erred in refusing instructions in the nature of demurrers to the evidence requested by defendant Dubinsky; (2) the court erred in the admission of evidence; and (3) the court erred in giving instruction C for plaintiff, and in refusing instructions A-3, A-5, and A-6 requested by appellant.

The record contains evidence of the following facts: The Jefferson Theater building was located on the northeast corner at the intersection of High and Jefferson streets. High street extends generally in the direction of east and west, and Jefferson street north and south. The front of the building, and the main entrance, is upon High street, and the west side thereof is adjacent to the sidewalk of Jefferson street. There was attached to the west side of the building a flight of iron steps leading to the gallery section of the theater. This is referred to as a fire escape, but was used at times to accommodate the exit of patrons from the gallery when large crowds attended the theater. The iron steps were constructed in sections, and the lower section, composed of ten or more steps, was attached to the upper portion, which was stationary, by a hinge arrangement, and the lower end of this section was attached to cables which passed through a pulley, and on the other end of the cable was a weight by means of which the lower section of the iron steps, when not in use, would be raised and held suspended about 12 feet above the sidewalk and ground adjacent to the building. By means of the cable, pulley, and weight, the section of the iron steps could be raised and lowered at will. When the iron steps were lowered completely, they rested upon a set of three wooden steps which were erected and maintained at right angles to the side of the building and for the purpose of receiving and supporting the iron steps when let down.

Immediately south of the wooden steps and in the west wall of the building is a doorway leading to an interior entrance to the gallery. North of the wooden steps is an unpaved strip between the building and the sidewalk proper, and the width of this strip is approximately the same as the length of the wooden steps. Immediately south of the wooden steps, and at the foot of the fire escape, and for some distance past the side door, the sidewalk widens to the full width of the space between the building and the curb line of the street. Still farther south the paved sidewalk again narrows, and there is some space between the inside line of it and the building.

The evidence favorable to plaintiff, illustrative of the position of the suspended iron steps and how the injury was received, shows that on Hallowe'en night at about 8:30 o'clock plaintiff and a companion were on High street in front of the theater building and near the corner of the street intersection; that plaintiff's companion stopped to talk to some person, and plaintiff stepped aside to wait for him. There were many people upon the street celebrating the occasion of Hallowe'en. Some person dressed as a clown threw a bundle of paper and struck plaintiff with it. The person so throwing the paper passed around the corner of the building and proceeded northwardly down the sidewalk on the west side of the building. Plaintiff thought he recognized the person, desired to know who he was, and followed him down the sidewalk at a brisk pace. About the time plaintiff reached the point upon the sidewalk in front of or near the wooden steps, his companion, who had started to follow, called to plaintiff in such a manner as to cause him to turn his head, and just as he did so plaintiff tripped or stumbled either upon the sidewalk or against the wooden steps, and struck his face against the lower point of the iron stairway which had been lowered to an elevation about even with his face. Plaintiff was severely injured and fell backward; his companion, named Gaither, came up and sought to assist him; plaintiff was bleeding profusely; they sought a doctor, but were unable to find one in a nearby building; they then met a police officer named Eldracher; the occurrence was related to the officer; one of plaintiff's cousins named Hagen arrived about this time, and he, together with Gaither, took plaintiff to the hospital where he received attention. The officer had heard that the boy had been in a fight and desired to investigate; he observed blood on the street, walked up Jefferson street to the fire escape, and by use of his flash-light saw blood on the fire escape and was satisfied of the manner in which the boy had been injured. This was about 10 minutes after he had met plaintiff. The officer indicated the elevation of the iron steps at a point where a mark had been made upon a photograph. He said he took his flash-light and examined the point of the steps, saw the blood, pushed the steps up, and went on. He also stated he did not know how high he had pushed the steps upward.

About one hour after plaintiff's injury, Gaither and Hagen, who had removed plaintiff to the hospital, returned to the scene of the accident to observe the fire escape. Gaither testified that at that time the steps were in the same position as they were at the time plaintiff was injured; that he had seen the iron steps down about one week before, resting on the wooden steps. Hagen testified that at the time he and Gaither saw the fire escape the steps were pulled down about even with his eyes. Appellant objected to this testimony by Hagen. Over the objection of appellant, plaintiff's father testified he visited the scene of the accident the day after the injury; that the steps were down just before his eyes, and that he observed blood upon the point of them. The witness made a mark upon a photograph indicating the height of the steps from the ground, and other witnesses testified that this correctly indicated the elevation of the steps at the time of the injury.

Plaintiff testified that he knew the steps were there, and that he had seen people coming down them from the theater. It appears that lights had been...