Turner v. Ragan

• Citation: 229 S.W. 809
• Decision Date: 05 March 1921
• Docket Number: No. 21224.,21224.
• Parties: TURNER v. RAGAN.
• Court: United States State Supreme Court of Missouri

229 S.W. 809

TURNER v. RAGAN.

No. 21224.

Supreme Court of Missouri, Division No. 1.

March 5, 1921.

Rehearing Denied April 9, 1921.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

Suit by Mary J. Turner against Massie J. Ragan. Plaintiff took an involuntary nonsuit. Motion to set aside denied. Judgment for defendant, and plaintiff appeals. Affirmed.

Philip D. Clear, of Kansas City, for appellant.

W. T. Latham and Marley Sa Reed, all of Kansas City, for respondent.

RAGLAND, C.

This is a suit by a tenant to recover for personal injuries alleged to have resulted from the negligent construction and maintenance by the lessor of a stairway on, or appuretenant to, the demised premises.

The petition alleges that the defendant was the sole owner of an apartment house in Kansas City, the apartments and rooms of which were occupied by different tenants who used the halls, stairways, basement, and laundry in common; that plaintiff was a tenant from month to month of defendant and occupied an apartment under a verbal letting of the apartments in said building; that by the terms of said letting defendant retained control over the halls, stairways, basement, and other parts and utilities of said building, used in common by the tenants, and was under the duty, and had agreed with plaintiff, to repair and keep and maintain said places and utilities in a reasonably safe condition for the use of plaintiff and the other occupants of said building; that at the time of the injury of plaintiff, and at all times prior thereto, the stairway leading to the basement from a hallway on the first floor was in a defective and dangerous condition and was not reasonably safe for the use of plaintiff and other occupants of the building, in this, to wit, that said stairway began at the hall doorway with a drop of three inches to the first step, which was only four inches wide, less than one-half the width of the succeeding steps, which were regularly constructed and were of the usual width of nine inches, and that said stairway was wholly unguarded by railings or banisters; that constructed as aforesaid said stairway was highly dangerous to persons descending the same; that on or about March 21, 1915, plaintiff in starting to descend said stairway was caused by its defective construction and maintenance as aforesaid to trip or stumble and fall down the stairway, in consequence of which she received severe and permanent injuries; and that by reason thereof she was damaged in the sum of $10,000.

The answer admitted that the defendant was the owner of the building; that she rented it to plaintiff; and that plaintiff was in possession thereof as her tenant. It denied the other allegations of the petition.

On the trial of the issues in the circuit court the plaintiff who testified in her own behalf was the only witness heard. From her testimony it appears:

The building in question consisted of two apartments or suites of rooms, one on the first floor and the other on the second. As constructed, only one part of the building was intended to be used in common by the occupants of the two apartments, and that was the vestibule opening onto the street. In order to enter either apartment, it was necessary to come into this vestibule. No openings or ways of any kind afforded a means of passing directly from one apartment into the other. They were separate and distinct tenements. There was a separate furnace or heater for each in the basement. The upper apartment communicated with the basement by means of a stairway in the rear of the building. From the lower apartment it could be reached by descending a stairway leading down to it from one of the halls in that apartment.

On December 1, 1913, the building was vacant. On that day the defendant leased the lower apartment or suite to the plaintiff for a rental of $30 a month. Afterward, on December 15, 1913, she leased the upper suite to plaintiff for $35 a month. In each instance the letting was verbal. Plaintiff went into possession of the two apartments severally on the respective dates on which they were leased to her. She occupied a part of the lower apartment and sublet the remainder of it and the entire upper suite to different persons for light housekeeping. Plaintiff operated both furnaces herself and furnished all the heat for both apartments. However, all of her tenants had occasion to go to the basement for the purpose of laundering, or depositing garbage and waste paper. The occupant of the back room on the second floor, which communicated with the basement stairway, would not permit other tenants on that floor to pass through his room to get to the stairway. In order to afford them and her tenants on the first floor a means of access to the basement, plaintiff permitted them to come into and through the hall in the lower apartment and from thence down the stairway leading from it to the basement; so that this hall and stairway came to be, and were, used in common by plaintiff and all her tenants as a passageway to and from the basement. Defendant came on the 1st and 15th of each month to collect rent from plaintiff and from time to time to inspect the premises and superintend the making of repairs. At such times she had full opportunity for observing, and she did observe, both the number of tenants occupying the building and the common use they were making of the hall and basement stairway just mentioned, and she at no time made any objection with respect to either. Thereafter, on March 21, 1915, plaintiff, in starting down the stairway leading from the hall in the lower apartment to the basement, which was constructed as alleged in the petition, tripped or stumbled on the top step and fell to the bottom, causing her to sustain severe and permanent injuries.

As to the lease contracts with respect to maintenance and repair of the premises, the plaintiff testified as follows:

"Mrs. Ragan said she wouldn't rent the house for housekeeping and would only rent it with sleepers. I said I couldn't make a living renting it to sleepers. I could not rent it. I wanted to rent the second floor. It was vacant some time. At first she said she wouldn't. In a couple of days she said she would agree. I must have the housekeepers and take the whole house. I said I would move from the house if she wouldn't fix it up, and `unless you fix it up and keep it in repairs.' * * * I asked her if she would keep the house in repair. She said she would do anything that was reasonable. I said, `I know the roof is leaking,' and other stuff had to be fixed. I said, `Will you do this?' She said, `Yes,' she would fix anything that had to be done; she would go through the house and look over it and have their men come to see what was to be done.

"Q. Now I will ask you about her coming in and out of the house; was there anything said she would do those things or go ahead and do it? A. She went ahead and did it.

"The Court: Have you given the subject of the conversation? A. I told her I would not take the building and move in and then move out again if the building was not kept safe. I said I wanted to be sure when I fixed the house up for rent. I wanted things done that ought to be done. I could not afford to make repairs and the other stuff; and she said she would repair it.

"The Court: Did you have the house full of tenants from that time until the time you were injured? A. Yes, sir.

"Q. Go ahead with the conversation. A. Mrs Ragan said she would rent it to me, the upper part for $35 and the lower for $30, and I kept the house until the 1st of October, 1915.

"Q. Did you keep up this agreement from the time you entered? A. Yes, sir.

"Q. Did you rent the entire building? A. Yes, sir; and payable—the rent was two weeks apart."

Plaintiff further testified that defendant came onto the premises from time to time to make repairs; that prior to the time plaintiff was hurt defendant had repaired the roof, furnaces, and gas pipes, and had papered some of the rooms and fixed loose boards on the outside stairway; and that for the purpose of inspection she entered the house whenever she wanted to. Plaintiff also testified that a guard rail or banister was put on the stairway on which she fell immediately after the accident; but on motion of defendant this was stricken out.

At the conclusion of plaintiff's testimony, the defendant filed a request for a peremptory instruction to the jury in the nature of a demurrer to the evidence. Upon a statement by the...