Udden v. O'Reilly

• Decision Date: 17 March 1904
• Citation: 79 S.W. 691,180 Mo. 650
• Parties: UDDEN v. O'REILLY.
• Court: Missouri Supreme Court

79 S.W. 691

180 Mo. 650

UDDEN v. O'REILLY.

Supreme Court of Missouri, Division No. 1.

March 17, 1904.

LANDLORD AND TENANT—DEFECTIVE PREMISES —KNOWLEDGE—ACTIONS—INSTRUCTIONS —NEW TRIAL—REVIEW.

1. In an action for injuries to a tenant by reason of a defective coal hole in an areaway in the rear of defendant's tenements, an instruction that plaintiff could not recover unless defendant had actual knowledge of the defect was erroneous.

2. Where a new trial has been granted by the trial court for error in an instruction given, and on appeal such instruction is found to be erroneous, the order granting the new trial will be affirmed, unless, on an examination of all the facts, no other verdict than that rendered is sustainable.

Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Action by Frederick Udden against Michael B. O'Reilly. From an order granting plaintiff a new trial after verdict in favor of defendant, he appeals. Affirmed.

Robt. L. McLaran, for appellant. C. J. Anderson, for respondent.

ROBINSON, J.

Appellant is the owner of two buildings or tenement houses in the city of St. Louis, one fronting north on Easton avenue, the other, immediately back of it, fronting south on Evans avenue. Each of these buildings had been partitioned off and divided up, so as to make several flats or sets of rooms for the occupancy of families desiring to rent same for dwelling purposes. Respondent, at the time of the institution of this suit, and for a long time prior thereto, had been the tenant of appellant, occupying one of the flats or sets of rooms in plaintiff's building fronting on Evans avenue. Between the rear of appellant's two main buildings there had been left an open court or yard about 25 feet wide for the common use of all tenants who may occupy apartments or flats in appellant's said building, which said court or yard had been entirely paved or covered with brick, except several small spaces of about 20 inches wide by 3 feet long, at the rear of said building, that had been left for use as coal holes, into which coal, wood, and such like material might be thrown into the basement of the buildings by the tenants using same. To protect these holes or openings, when not in use, wooden frames or coverings had originally been made to fit over their tops, and thus caused them to present an even surface with the pavement of the common court or back yard. In respondent's petition it is stated, and so the facts were shown to be, that all of appellant's flats or sets of rooms in both buildings had openings or ways out into this common yard or court from the rear, and that the building fronting on Easton avenue had been so constructed as to leave an arched passageway about three feet wide, through its center, to afford a way to and from Easton avenue to said common court or yard for appellant's tenants occupying his two said buildings, and for those desiring to go to Easton avenue from the rear of their premises through said common court or yard. After having recited the existence of the above facts, the respondent, in his petition, says: "That on the 3d day of November, 1898, and for two or three weeks prior to said date, there was in the rear of said store numbered 3622 Easton avenue a deep and dangerous hole or opening, extending out into said court or yard two and one-half feet, and was about five feet deep and three feet long, and extended to within 18 inches of said passageway, hereinbefore mentioned, leading out to Easton avenue from said paved court or yard. That said hole or opening was at said date, and for about three weeks prior thereto had been, unprotected by slats or cover. That on said 3d day of November, 1898, and for several months prior thereto, the plaintiff was a tenant of the defendant, occupying the said flat 3617a Evans avenue, and when going to Easton avenue from the rear of said flat the plaintiff was in the habit of passing across said paved court or yard, and through said arched passageway, to said Easton avenue. That the condition of said hole or opening at and near the said passageway was known to the defendant prior to the said 3d day of November, 1898, but was unknown to plaintiff,...