Streckenfinger v. Bullock

• Decision Date: 01 May 1933
• Docket Number: No. 17735.,17735.
• Citation: 60 S.W.2d 661
• Parties: STRECKENFINGER v. BULLOCK.
• Court: Missouri Court of Appeals

60 S.W.2d 661

STRECKENFINGER v. BULLOCK.

No. 17735.

Kansas City Court of Appeals. Missouri.

May 1, 1933.

Rehearing Denied May 22, 1933.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be published in State Reports."

Action by Lulu Streckenfinger against May D. Bullock. From a judgment for plaintiff, defendant appeals.

Affirmed.

Orestes Mitchell, Jr., Alan S. Bullock, and Wm. J. Sherwood, all of St. Joseph, for appellant.

Nile Vermillion and Randolph & Randolph, all of St. Joseph, for respondent.

TRIMBLE, Judge.

Plaintiff, a month to month tenant of defendant in the occupancy of a dwelling house in St. Joseph, Mo., went out on a wooden porch thereof (the floor of which was 10 or 12 feet above the ground and had a banister surrounding it), for the purpose of shaking some of the household rugs. In doing so, she was near to, and happened to lean slightly against, said banister, which immediately gave way, causing plaintiff to lose her balance and fall outward to the ground below, breaking her arm and otherwise injuring her. She brought this suit for damages, and recovered a verdict of $2,000, from which defendant has appealed.

The petition, after alleging defendant's ownership of, and plaintiff's tenancy in, the dwelling, stated that defendant, without plaintiff's knowledge, made certain repairs to the premises, and, among others, negligently constructed a banister around said porch, in that it was, particularly on the north side thereof at the east end, not nailed or fastened, but was simply wedged insecurely between concrete posts in imitation of stone work; that defendant negligently failed to securely fasten said banister so that the same was defective, dangerous, and likely to give way; that defendant planted a vine so that it grew around and over said banister and hid the same; that the defect was not apparent to any one looking at the banister because of the nature of its construction and because of said vine; that said defect was known to defendant, but unknown to plaintiff; that plaintiff went out upon said porch, and, as above stated, the banister gave way and she fell and was injured.

The answer was a general denial.

Plaintiff testified that she rented the property in question about 13 years before, and lived in it for 7 years, and then left it, and was away something "short of four years," and then rented it again and lived there for 3 years and 5 months, or up until the day before the trial; that the last time she rented it from the defendant, Mrs. Bullock; that they did not have any agreement about keeping the premises in repair; that the porch and banister were built about 20 years ago at a time when plaintiff was living opposite it across the street; that she saw Mr. Bullock building the porch and the banister, that is, the wooden parts thereof, she did not know who built the concrete pillars.

Plaintiff's evidence is that the porch and banister were there when she rented the house the second time; that she never examined them; never examined the construction of the banister, but remembered distinctly that Mr. Bullock built the porch and banister; that she saw the defendant, Mrs. Bullock, out there many times when the work was being done.

Plaintiff testified that a vine, which last summer had almost completely covered the porch, covered the whole banister; said vine was not there when plaintiff left the last time, but it was there when she moved back there the last time; Mr. Bullock told her he planted the vine; told her that the first or second time he came down after plaintiff moved in the second time; about a couple of years ago he told plaintiff that. She could not say what kind of vine it was, some kind of ivy.

Plaintiff testified that she had no more way of seeing the condition the banister was in than anybody else until it fell, and then anybody could see it; the leaves were still on and the vine "was in its beauty" at the time of her fall, so she could not possibly see the banister's condition; that she did not know, prior to her fall, how the banister was fastened, had no way to know; that she did not look, after she fell, to see how it was fastened, as she was never on the porch after that.

She further testified that the banister was about 28 or 30 inches in height, and that the piece of banister, about 5½ feet long shown her on the witness stand, is the piece that gave way with her and caused her to fall; that it was first kept under the back porch until her attorney instructed her to keep it. For 3 or 4 days after her fall it lay on the ground where it fell, then some one "picked it up and set it up against the brick wall right under where the banister fell," and it stood there about the same length of time, 8 days altogether, and then, after being instructed by the attorney to keep the same, it was kept in the basement...