Walker v. Niemeyer, 50431
| Decision Date | 11 January 1965 |
| Docket Number | No. 1,No. 50431,50431,1 |
| Citation | 386 S.W.2d 87 |
| Parties | Mrs A. J. WALKER, Respondent, v. Edwin NIEMEYER and Grace Niemeyer, Appellants |
| Court | Missouri Supreme Court |
W. F. Daniels, Fayette, for respondent.
Dale Reesman, Boonville, for appellants.
Action for $25,000 damages for personal injuries alleged to have been sustained by plaintiff when she fell on the steps of a building (a former residence) owned by defendants, which building had been divided into four apartments, two on the first floor and two on the second. Plaintiff was a tenant of one of the second-floor apartments and was using a stairway provided by defendants for the use of the second-floor tenants at the time she fell. Verdict and judgment were for defendants, but the Court granted plaintiff a new trial on the ground that 'defendants' instructions D-4, D-5, D-6 and D-11 are erroneous and misdirected the Jury because each of them fail to contain a proper and sufficient factual hypothesization of the evidentiary facts.'
Defendants have appealed and, as appellants, here contend that the Court erred in refusing to direct a verdict for defendants at the close of all the evidence, as requested by defendants, (1) because plaintiff failed to make a case for the jury on plaintiff's claim; and (2) because plaintiff was guilty of contributory negligence as a matter of law.
In considering the issues presented, a statement of the evidence most favorable to plaintiff is required. We shall disregard defendants' evidence unless it aids plaintiff's case. Neal v. Kansas City Public Service Co., 353 Mo. 779, 184 S.W.2d 441, 442[1, 2]. Our statement shall also include the evidence most favorable to plaintiff on the issue of whether she was guilty of contributory negligence as a matter of law. Goldbaum v. James Mulligan Printing & Publishing Co., 347 Mo. 844, 149 S.W.2d 348, 351.
As stated, plaintiff was a tenant of defendants and was occupying one of the mentioned second-floor apartments. She was seventy-two years of age and had moved into the building on April 25, 1960, only a few days prior to sustaining her injuries, on April 29, 1960.
One of the defendants testified that she and her husband owned the property and had reserved the use of the stairway for their tenants. She also testified that she kept the steps clean and looked after the stairway. The record does not show how long the defendants had owned this apartment but the other defendant testified that he had last varnished the steps approximately two years prior to plaintiff's fall.
Access to the second-floor apartments was ordinarily gained through an outside door on the north side of the building, although there was also a back stairway. The outside door on the north side of the building opened into a vestibule about four feet square and the mentioned stairway led up to the right or to the west to a landing which was about the same size as the vestibule. There were three steps from the vestibule floor to this landing from which the stairway led up to the left some eleven steps to a second landing, where there was an outside window. The stairway then went up to the left or east four steps to the second-floor hallway. The outside window threw some light on the second landing, but none on the lower steps.
There was a light cord hanging from the ceiling of the second landing, with the light bulb (60 watt) about nine feet nine inches above the floor of the second landing (fifteen and one-half feet above the first landing), 'just a drop cord with an ordinary light bulb in it.' There was also a light fixture located on the north wall of the vestibule above the first and second steps, which fixture was seven feet eight inches from the vestibule floor. The light above the second landing was operated by a switch located to the right or west side of the vestibule door and also by a switch located in the second-floor hall. The light fixture above the first steps from the vestibule was operated only by a switch to the right of the outside door. The same switch operated a porch light outside the north entrance door. There was a venetian blind and some draps covering the glass portion of this outside door. On the left side of the mentioned stairway going up, there was a bannister all the way to the second floor, while on the right side of the stairs was the outside wall of the building.
There was testimony that even with the upper light on at the head of the stairway it threw no light, or very little, on the bottom three steps because the light was actually behind a wall and, as stated, this upper light was some fifteen feet above the first landing. Other testimony tended to show that the nose or under-cut area of the bottom three steps varied; and that the steps were of wood, worn, stained dark, varnished and waxed.
A witness for plaintiff measured the rise of each of the three steps between the vestibule and the first landing and determined that the rise of the first step was six and one-half inches; the second, five and five-eighths inches; the third, five and thirteen-sixteenths inches and the last rise to the first landing was five and five-sixteenths inches. He also found that there was a slight variation in the width of the treads, the tread on the first step being nine and a quarter inches; the second, nine and seven-sixteenths inches and the third, nine and five-sixteenths inches. This same witness stated that at the time he examined these steps on February 21, 1963, at 4:30 in the afternoon of a clear, cold day he found wax on the steps which he could remove with his fingernail; the yellow material he so obtained was wax and not varnish, which you would have had to scrape off. No objection was made to this testimony although defendants claimed to have sold the property prior to the mentioned date. 'The nosing [on the mentioned three steps] was five-eights of an inch, one-quarter of an inch, and three-quarters of an inch [respectively], a variation of one-half inch.' The nosing on these steps was 'worn and well varnished and waxed.'
Concerning these three steps, plaintiff testified: 'They are rather narrow steps' and 'they are worn until they are round on the edge.' She also testified that the steps were waxed and had a nice gloss. At the time she fell she was wearing dress oxford shoes with an inch and a half heel, not a spike heel.
Neither the owners of the apartment nor anyone else had instructed plaintiff with reference to the operation or use of the front stairway lights. Plaintiff had been using the rear stairway and had been up and down the north stairway no more than twice prior to her fall. On that date she left her apartment and went to the grocery store where she obtained two sacks of groceries and, after parking her automobile, she carried the two sacks of groceries into the north vestibule of the house. She placed one of the sacks on the second step up from the vestibule floor and carried the other sack up the stairs to her apartment.
When she was at the grocery store a light mist was falling so that the walks were damp or wet and, when she returned home and entered the house, she did not wipe her shoes off on the rug on the vestibule floor, but came in over it. She did not attempt to turn on either of the light switches located to the right of the door, although she had seen and observed the location of the switches. There was enough light from the window so she could see to go up the steps. When she reached her apartment she walked through the living room of her apartment and back to the kitchen, where she placed the groceries on a table and started back for the rest of the groceries. She used the light switch in the secondfloor hall to turn on the top light above the second landing, but it did not throw any light on the lower steps. The first-floor light was not burning and, as stated, could not be turned on from the second floor.
When plaintiff started back down the steps for the other sack of groceries, she placed her right hand on the bannister, until she reached the first landing up from the vestibule; she turned to her right on the landing and started down the remaining three steps without holding to the bannister. On either the first or second step below this first landing, she started to turn to pick up her groceries and her foot slipped from the step and she fell, breaking her hip. She also testified: She also testified that, at the time she fell, while she could see the last three steps, she could not see them plainly 'because the light was not on them and it was dark that afternoon.' When she fell, she had not actually bent over to pick up the groceries she had placed on the second step.
After defendant's motion for a directed verdict had been overruled at the close of all the evidence, the plaintiff submitted a finding by Instruction No. 1, as follows: '* * * that the defendants were the owners of the property located at 402 Center Street, Boonville, Missouri, and that on said property was located a two story residence made into four apartments, * * * that one of the second story apartments was rented and occupied by the plaintiff and that to said apartment were steps leading from the front door, which said stairway was used by the occupants of the upstairs apartments and the lower apartments as a common stairway, * * * and if you find that on April 29, 1960, the day plaintiff was injured, that said stairway and steps were worn, of uneven height and width, worn smooth on the edges of said steps and that said steps were varnished and...
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