Straub v. Soderer

• Decision Date: 31 March 1873
• Parties: CATHERINE STRAUB, Appellant, v. ALAIS SODERER, Respondent.
• Court: Missouri Supreme Court

53 Mo. 38

CATHERINE STRAUB, Appellant,

v.ALAIS SODERER, Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Voullaire & Sternberg, for Appellant.

I. “When one either sells or rents to another, premises surrounded by the vendor's or landlord's land, a right of ingress and egress to and from such premises over the property of the vendor or landlords, is by law a part and parcel of the right acquired. This right extends to all who have reasonable cause to use the same.”

If a landlord lets premises with an existing nuisance upon it, he is personally responsible to any one who receives any injury thereby. (Addison on Wrongs, 137-138.)

II. The defendant having provided this passage as a means of access to portions of his premises, thereby held out an inducement to persons to use the same, and he could not either himself do or permit another to do any act which would render the way dangerous. (Corby vs. Hill, 4 C. B. N. S., 556; 1 Ellis B. v. Ellis, 168; 10 Allen 374; Addison on Wrongs 141, et seq.)

III. Even if defendant was nominally a trespasser, the wife in this case would not be barred from a recovery. (Dailey vs. N. & W. R. R. Co., 26 Conn., 596; 35 New Hampshire, 271; Barnes vs. Ward 9 M. G. & S., 420; Bird vs. Holbrook, 4 Bing., 646.)

A. M. Gardner and S. M. Breckenridge, for Respondent.

I. Deceased was going through this private alley, by a rear entrance, not designed for such use, late at night, after business hours, to borrow a paper from Tegerthoff's corner grocery, or to visit Walters and thus fell down this cellar stair way.

If so, deceased having no connection of any kind with the building or the landlord, can have no greater right certainly than the tenant Tegerthoff or Walters whose customer or visitor he was, or sought to be. (Robbins vs. Jones, 15 C. B. N. S. 220, et seq.; Wilkinson vs. Famie, et al., 1 Hurlst. & Colem. 631, 633, 634; Shearm. & Redf. Neg., §§ 498, 501, 2 & 3; Stone & Wife vs. Jackson, 16 C. B., 199; Janis vs. Dean, 11 Morre p. 354; Hardcastle, Adm. vs. South Y. R. R. Co., 4 Hurlst. & N., 65.)

EWING, Judge, delivered the opinion of the court.

This is an action to recover damages for the death of the husband of plaintiff, based upon the third section of the Damage Act.

The material averments of the petition are, that the defendant at the time of the death of the plaintiff's husband was the owner of a certain tract of land situated in the City of St. Louis, bounded on the South by Morgan street, on the East by 24th street, on the West by 25th street, and on the North by a public alley; that defendant had on said premises a large number of houses that were occupied by different persons as his tenants; that many of said tenants had, as an ordinary and usual means of access to their respective portions of said premises, a certain passage-way which had been provided by the defendant as a common means of access for the use of his ten ants, and all persons having lawful occasion to use the same; that said passage-way extended from Morgan street to said alley on the North, and was a thoroughfare; that it was the duty of the defendant to keep and maintain said passage-way and thoroughfare free, clear and unobstructed, and safe for the use of said tenants and all other persons having lawful occasion to use the same. That defendant neglected his duty in this respect, and caused a deep and dangerous pit or excavation to be dug, in consequence of which said passage was rendered insecure and dangerous to persons lawfully using the same, and neglected to fence or properly guard said pit; that during the night Straub, plaintiff's husband, while lawfully passing along said passage without fault on his part fell into said pit and was so injured that he died by reason of the injuries then and there received. The answer admits that the defendant was at the time stated in the petition the owner in fee of the premises therein described, but says that long priorto that time said premises had been leased to various parties, who had then and for a long time previous had had the exclusive possession and control thereof. The other material allegations of the answer are denied. There was a replication to the answer.

After the plaintiff closed her testimony, an instruction was given in the nature of a demurrer to the evidence, wherupon plaintiff took a non-suit.

The motion to set aside being overruled and judgment rendered for defendant, the cause was taken by appeal to General Term where the judgment was affirmed, and the cause is here by appeal from that judgment.

The evidence shows that the defendant had on the premises a number of houses that were occupied by his tenants, the first floor being rented to one set of tenants and the upper floor to others. Those occupying apartments on the ground floor fronting on Morgan street, entered on that street; those occupying the second floor (with few exceptions) entering a central quadrangle or court from which a stairway ascended. This enclosed space, or court, was entered by a covered alley three feet wide from the South, and by one or two from the alley North of the buildings. On the corner of 24th & Morgan street was a grocery and dram shop; next west was a store, in the rear of which was a cellar entrance about three feet wide and six or eight feet long, the...