Steinmetz v. Nichols

• Citation: 180 S.W.2d 712,352 Mo. 1047
• Decision Date: 02 May 1944
• Docket Number: 38790
• Parties: John W. Steinmetz, Appellant, v. J. C. Nichols, Herbert v. Jones, and Robert W. Caldwell, Individually, who collectively are University Trustees Under the Will of William Rockhill Nelson, Deceased
• Court: United States State Supreme Court of Missouri

180 S.W.2d 712

352 Mo. 1047

John W. Steinmetz, Appellant, v. J. C. Nichols, Herbert v. Jones, and Robert W. Caldwell, Individually, who collectively are University Trustees Under the Will of William Rockhill Nelson, Deceased

No. 38790

Supreme Court of Missouri

May 2, 1944

Rehearing Denied June 5, 1944.

Appeal from Jackson Circuit Court; Hon. Albert A. Ridge Judge.

Affirmed.

Maurice J. O'Sullivan and Leo T. Schwartz for appellant.

(1) Defendants were liable for failure to warn plaintiff that they had created a dangerous condition by which they made a safe roof unsafe. Long v. Woolworth Co., 159 S.W.2d 619; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Kellogg v. H.D. Lee Merc. Co., 160 S.W.2d 838; Whittington v. Westport Hotel Op. Co., 326 Mo. 1117 33 S.W.2d 963; Summa v. Morgan R.E. Co., 165 S.W.2d 390; Giles v. Moundridge Milling Co., 173 S.W.2d 745; Devine v. Kroger Gro. Co., 349 Mo. 621, 162 S.W.2d 813; Winters v. Hassenbush, 89 S.W.2d 546; McCormick v. Lowe & Campbell, 235 Mo.App. 612, 144 S.W.2d 866; Cento v. Security Bldg. Co., 99 S.W.2d 1; State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84; Arnold v. Graham, 219 Mo.App. 249, 272 S.W. 91; Bartlett v. Taylor, 174 S.W.2d 844; Restatement, Law of Torts, secs. 335, 342, pp. 909, 910 935 937; 38 Am. Jur. 1036, sec. 337; 20 Am. Jur., p. 608, sec. 27, p. 1054, sec. 1204; C.J.S., sec. 713, pp. 618-620; Ann., L.R.A. (N.S.) 1162; Holcombe v. Buckland, 130 F.2d 544; Atlantic Greyhound Corp. v. Newton, 131 F.2d 845; Robey v. Keller, 114 F.2d 790; 38 Am. Jur. 1054, sec. 348; Phillips Pet. Co. v. Miller, 84 F.2d 148; Rose v. Missouri Dist. Teleg. Co., 328 Mo. 1009, 43 S.W.2d 562, 81 A.L.R. 400. (2) Prejudicial errors in instructions H and I. 38 Am. Jur. 864, sec. 188; Bartlett v. Taylor, 174 S.W.2d 844; 2 Restatement of Torts, sec. 342 (d), pp. 935, 938 (h); sec. 343; Weinel v. Hesse, 174 S.W.2d 903; Streicher v. Merc. Trust Co., 31 S.W.2d 1065, 62 S.W.2d 461; Doyle v. St. L.M.B.T. Co., 326 Mo. 425, 31 S.W.2d 1010; Oglesby v. St. L.-S.F.R. Co., 318 Mo. 79, 1 S.W.2d 172; O'Donnell v. B. & O.R. Co., 324 Mo. 1097, 26 S.W.2d 929; Harms v. Emerson Elec. M. Co., 41 S.W.2d 375; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; Watts v. Mousette, 337 Mo. 533, 85 S.W.2d 487; State ex rel. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673; State ex rel. v. Allen, 344 Mo. 66, 124 S.W.2d 1080; Todd v. St. L. & S.F.R. Co., 37 S.W.2d 557; 45 C.J. 1152, sec. 741, note 22; p. 1162, sec. 749; p. 1174, sec. 55; Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533; Murphy v. Fidelity Natl. Bank & Trust Co., 226 Mo.App. 1181, 49 S.W.2d 668; 45 C.J., p. 1275, sec. 842; Peltola v. Whiting, 132 F.2d 857; Spain v. Burch, 169 Mo.App. 94, 154 S.W. 172; Clason v. Lenz, 332 Mo. 1118, 61 S.W.2d 727; Woods v. Ogden, 102 S.W.2d 648; Mahaney v. K.C., C.C. & St. J.R. Co., 329 Mo. 793, 46 S.W.2d 817; Tash v. St. L.-S. F.R. Co., 335 Mo. 1148, 76 S.W.2d 690; Griffith v. Continental Cas. Co., 299 Mo. 426, 253 S.W. 1043; Bibb v. Grady, 231 S.W. 1020; Walker v. Mo. Pac. R. Co., 253 S.W. 804. (3) Defendants' Instruction G was reversible error, especially after accentuating that workmen's compensation benefits had been paid by plaintiff's employer. 64 C.J., sec. 646, p. 736; secs. 647 and 648; Orr v. Bradley, 103 S.W. 1149; Fisher v. Pullman, 254 S.W. 114. (4) Defendants' Instruction L was prejudicial error. Bryant v. Kansas City Rys. Co., 286 Mo. 352, 228 S.W. 472; Jennings v. Cooper, 230 S.W. 325.

Stanley Garrity and John W. Oliver for respondents; Caldwell, Downing, Noble & Garrity of counsel.

(1) Defendants' duty, if any, to plaintiff with respect to natural or artificial conditions which defendants should have realized as involving an unreasonable risk to plaintiff, as an invitee, was to either make the condition reasonably safe or to warn plaintiff thereof. Brown v. Reorganization-Inv. Co., 350 Mo. 407, 166 S.W.2d 476; 2 Restatement of Torts, sec. 343, p. 938. (2) Defendants' alternative duty to either make reasonably safe or to warn plaintiff is discharged if plaintiff receives the warning by reason of the obviousness of the condition. No further or additional warning is necessary in such a case. Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369; Stoll v. First Natl. Bank of Independence, 234 Mo.App. 364, 132 S.W.2d 676; Ilgenfritz v. Mo. P. & L. Co., 340 Mo. 648, 101 S.W.2d 723; Stoll v. First Natl. Bank of Independence, 345 Mo. 582, 134 S.W.2d 97; Stein v. Battenfeld Oil & Grease Co., 327 Mo. 804, 39 S.W.2d 345. (3) In passing upon the question of whether or not defendants violated any duty to plaintiff and whether or not defendants' duty had been discharged by the warning, no question of contributory negligence is involved. Goetz v. Hydraulic Pressed Brick Co., 320 Mo. 586, 9 S.W.2d 606. (4) The case at bar does not present any question involving a concealed or latent defect, as defendant attempts to argue, but simply a case of a condition which on its face gave reason to anyone viewing it to apprehend danger. Long v. Woolworth Co., 159 S.W.2d 619. (5) The case should be affirmed for the reason that all of defendants' instructions were in accordance with the law. When read separately or with the other instructions they show that the jury was properly instructed. Defendants' Instruction H correctly submitted the question of whether defendants' duty had been discharged by reason of the warning that was apparent from the obvious condition of the premises. Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369. (6) Plaintiff's Instruction 1, by submitting the same question, joined in and cured any possible error in defendants' Instruction H. Sec. 207, Raymond's Missouri Instructions, p. 180. (7) Defendants' Instruction I correctly submitted the question of plaintiff's contributory negligence. It correctly hypothesized the facts, whether they constituted negligence, and whether they directly contributed to and helped bring about plaintiff's fall. Sec. 130, Raymond's Missouri Instructions, p. 118. (8) Any error (which we deny) was cured by plaintiff's Instruction 3, which submitted a burden of proof instruction on the question of contributory negligence. Defendants' instructions G and L were in the nature of cautionary instructions and the action of the trial court in overruling plaintiff's motion for new trial, based upon complaint of these instructions being misleading and the like, will be affirmed unless an abuse of discretion is shown. No abuse of discretion is either charged or shown. Morris v. E.I. DuPont & Co., 351 Mo. 479, 173 S.W.2d 39.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

PER CURIAM

Action for $ 25,000 damages for personal injuries sustained by plaintiff when, on account of alleged negligence of defendants, he fell into a below-ground-level portion of an areaway in the rear of a building controlled by defendants. Judgment was entered on a verdict for defendants and plaintiff has appealed.

The defendants were collectively "University Trustees" under the last will and testament of William Rockhill Nelson, deceased, and, as such Trustees, they owned the real estate (where plaintiff was injured) and managed and controlled it for the benefit of the Trust Estate.

A building on the described real estate contained five business places and some apartments. In the rear of the building was a common court or driveway for use of all the tenants. One of the business places was a grocery store. This store building had been lengthened by a ten foot extension and a small areaway or recess (open on the south) was left between the west side of the extension and the east and south sides (rear) of the original building. The east part of the areaway was divided by an east-west guardrail consisting of parallel iron pipes supported by uprights set in concrete. On the north side of the guardrail, the areaway was open down to the basement floor fourteen feet below the top guardrail. This opening was completely surrounded on the north and east by the building and extension and on the west and south by guard rails. South of the open areaway was a tract three and one-half feet north and south by six feet east and west, bound on the north by the guardrail (between it and the opening) and on the east by the outside west wall of the extension. On this wall a utility company had located four electric light meter boxes (meters for tenants of the building). A demand meter box was located just below the north one of these meter boxes. Other meter boxes were located on the south wall of the extension (all located where they could be examined from the ground outside the building).

Subsequent to the placing of the meter boxes on the outside wall of the extension, Earl Juul, the tenant who operated the grocery store, asked and was granted permission by defendants' rental agent to locate an electric refrigeration motor on the ground below the meter boxes which were on the west wall of the extension. Other tenants complained of the noise of the motor and Juul enclosed his electric refrigeration motor in a kind of a box or shed and put a table top and some two inch boards over it to keep out the rain. These boards did not quite cover the box on the north, next to the iron fence and open areaway. The box or shed was about three by four feet and three feet high. One could walk in on the west side of the shed (two foot space) and there were a few inches of space between the shed and the guardrail on the north. The top of the shed was a little higher than this guardrail and there was nothing to keep one from falling off the top or roof of the shed and into the open areaway on the north. After the shed had been constructed and covered, meter readers climbed on top of the shed to read the meters.

In June 1941, plaintiff, a chart changer ...