Ward v. Kellogg

• Decision Date: 27 May 1912
• Citation: 148 S.W. 174,164 Mo.App. 81
• Parties: LUTHER WARD, Appellant, v. PERRIGRINE SCOTT KELLOGG et al., Respondents
• Court: Kansas Court of Appeals

148 S.W. 174

164 Mo.App. 81

LUTHER WARD, Appellant, v. PERRIGRINE SCOTT KELLOGG et al., Respondents

Court of Appeals of Missouri, Kansas City

May 27, 1912

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

AFFIRMED.

Judgment affirmed.

Alden E. Henry and Lawrence Fulton for appellant.

(1) A landlord is responsible for injuries to a third person arising from the bad repair of the sidewalk space upon which the leased premises abut, if the condition existed at the time the premises were let. Stoetzele v. Swearingen, 90 Mo.App. 588; Powers v. Ins. Co., 91 Mo.App. 55; Mancuso v. Kansas City, 74 Mo.App. 138; Timlin v. Oil Co., 126 N.Y. 514. 2. There is no traveled way of a sidewalk less than its width and one traveling across a sidewalk is entitled to be safeguarded in the same degree as one traveling lengthwise thereof. Powers v. Ins Co., 91 Mo.App. 55; Walker v. City of Kansas, 99 Mo. 647; Goins v. City of Moberly, 127 Mo. 116.

McCune Brown, Harding & Murphy for respondents.

It is unquestionably the duty of the city and of an abutting property owner, where such owner is making some use of the street in conection with his premises, to keep the sidewalk space in reasonably safe condition for passersby or travelers using the same as travelers, but such duty extends no further. Kiley v. The City of Kansas, 87 Mo. 107; Arnold v. St. Louis, 152 Mo. 178.

OPINION

JOHNSON, J.

The circuit court sustained a demurrer to plaintiff's petition on the ground that it fails to state a cause of action and on the refusal of plaintiff to amend, rendered judgment for defendants. Plaintiff appealed and argues in her brief that her petition states a good cause. She alleges that she sustained personal injuries in consequence of defendant's failure to maintain in a reasonably safe condition a stairway leading to the basement of a building owned by defendants and occupied by their tenant who conducted a barber shop therein. The building fronts on Delaware street, one of the public streets of Kansas City, and is in the business district. The stairway from the street to the basement is in the sidewalk space. It is not alleged that the opening for the stairway was not properly guarded for the protection of pedestrians traveling on the sidewalk, but it is alleged that the steps of the stairway which were of marble were in a defective and dangerous condition to those using them for ingress and egress to and from the barber shop. A brother of plaintiff was employed in another barber shop on Delaware street and not knowing the place of his employment, plaintiff started into the barber shop in defendants' building to inquire the whereabouts of her brother. She left the sidewalk and was going down the stairway when she tripped or stumbled on one of the defective steps and fell, receiving the injuries for which she seeks redress.

These are the material facts of the case and the question for our determination is whether or not these facts considered in the light most friendly to the cause of action asserted by plaintiff show that her injury was the result of negligence of defendants. Negligence is a breach of duty and unless it should be said that defendants owed some duty to plaintiff which they negligently failed to perform, there can be no recovery in this action, since the gravamen of plaintiff's cause is not a wanton or willful wrong but a negligent breach of duty.

We shall assume for argument that the duty of defendants, the owners of the premises with respect to the maintenance of the stairway in a reasonably safe condition for the use of persons going in and out of the basement was the same as the duty of the tenant and shall proceed to inquire into the nature of that common duty. Defendants owned the land in front of their premises to the middle of the street, subject to the public easement and, subject to reasonable municipal and public control and regulation, had the right to place the basement stairway in the sidewalk space. [Gordon v. Peltzer, 56 Mo.App. 599.]

The ordinance pleaded in the petition did not forbid such use of the sidewalk but only regulated it to the end that such openings should be guarded in a manner to protect travelers using the sidewalk against danger of injury. The ordinance was merely declaratory of the rules of common law applicable to such cases. Defendants owed the duty of reasonable...