Weigel v. Reintjes
| Decision Date | 07 October 1941 |
| Docket Number | 25,706 |
| Citation | 154 S.W.2d 412 |
| Parties | KATHERINE WEIGEL, Respondent, v. WILLIAM H. REINTJES, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court. City of St. Louis. Hon. David J Murphy, Judge.
Reversed and remanded.
Edward J. McCullen
This suit was brought by respondent, as plaintiff, against appellant, as defendant, to recover damages for personal injuries alleged to have been sustained by plaintiff in the entrance way of St. Alphonsus Rock Church on the east side of Grand Avenue near the intersection of Grand and Finney Avenues in the City of St. Louis, Missouri. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $ 1500.00. Defendant duly appealed.
It appears that, at the time of the accident alleged by plaintiff, defendant, referred to as Father Reintjes, was pastor of St. Alphonsus Rock Church. Plaintiff's amended petition alleged that, as such pastor, defendant was in possession and control of the premises of the church; that the premises consisted of the church with a courtyard and entrance way in front thereof; that defendant invited the general public to come and attend said church; that, in the traveled surface of said entrance way to said church, there was a channel for drainage purposes, which formed a depression in the traveled portion of said entrance way that, on or about May 10, 1938, while plaintiff was in and upon said entrance way pursuant to the invitation of defendant, she was caused to fall due to said channel and depression, whereby she sustained injuries which resulted directly and proximately from the negligence and carelessness of defendant.
The negligence charged in plaintiff's petition was that defendant negligently permitted said channel and depression to remain in the entrance way; that said condition was dangerous and not reasonably safe; that defendant negligently failed to place a covering or grating over said drainage channel; negligently failed to fence or barricade the aforesaid ditch; negligently failed to inspect the premises and discover the aforesaid defective and dangerous condition when, by the exercise of ordinary care, he could have done so in time thereafter to have repaired or remedied the same negligently failed to warn plaintiff of said condition and danger; negligently failed to repair or remedy said condition of danger when, by the exercise of ordinary care in so doing, he could have avoided plaintiff's injury; negligently failed to light said courtyard and entrance way sufficiently when, by the exercise of ordinary care in so doing, he could have avoided plaintiff's injury.
Defendant's amended answer to plaintiff's amended petition contained a general denial coupled with a plea of contributory negligence, charging in substance that the condition of said property was known to plaintiff or would have been observed by her in the exercise of ordinary care on her own part; and that, in the exercise of ordinary care for her own safety, she would not have walked or stepped into the channel described in said amended petition and would not have fallen and been injured; that plaintiff's own negligence in walking and stepping into said channel directly caused or directly contributed to cause plaintiff's fall and injuries, if any she sustained.
Defendant's first contention is that the court committed prejudicial error in refusing to discharge the jury and declare a mistrial as the result of plaintiff's voluntary statement on her direct examination that defendant told her after the accident that he had insurance. In support of this contention defendant cites the cases of Whitman vs. Carver (Mo. Sup.) 337 Mo. 1247, 88 S.W.2d 885, and Olian vs. Olian, 332 Mo. 689, 59 S.W.2d 673. With respect to this contention, counsel for plaintiff frankly state that in their opinion the testimony complained of was erroneously admitted in view of the rulings of our Supreme Court in the above two cases, and plaintiff confesses error on this point. Defendant, however, further contends that the trial court erred in refusing to give and read to the jury the peremptory instruction to find for defendant, requested by defendant at the close of the whole case. Defendant insists that plaintiff was guilty of contributory negligence as a matter of law, and that the evidence wholly failed to show any negligence on the part of defendant.
Plaintiff, a woman forty years of age, testified that on May 10, 1938, about 7:30 p.m., she and her friend Mrs. Hannah Winkler had gone to the Rock Church to attend devotions there at 8 p.m. She had been attending that church about two years prior to the accident. She and her friend entered the paved courtyard in front of the church, having used the steps at the north end of the courtyard which led from the public sidewalk up into the yard. She went towards the middle door of the church, and as they approached said door the people, who had been in the church, began to come out into the courtyard through the three doors, the one to the north, the middle door, and the one to the south. As the crowd came out of the doors, plaintiff and her companion were forced backward. Plaintiff testified that she "just backed up and kept backing up as the people were coming out of the church"; that she "looked back to see if anyone was in back" of her; that the next thing she knew her heel went down into a hole; that she stepped back down into something and was thrown against the wall and fell forward on her right knee; that she sustained a broken kneecap and other injuries. After her fall she was assisted and taken to her home where a doctor was called, and the next day she was taken to a hospital. There being no contention as to the nature or extent of plaintiff's injuries, it is unnecessary to set them forth here.
Plaintiff introduced in evidence three photographs and a plat marked respectively plaintiff's Exhibits A, B, C and D, showing the three entrances to the auditorium of the church and the courtyard, also referred to as platform, just outside the church doors, as well as the location of the stairways leading from the public sidewalk to the courtyard platform. The platform ran along the front of the church from north to south. It was seventy-nine feet from the north stairs to the south stairs across the platform. The three doors leading from the platform into the church faced the west. The church is on the east side of Grand Avenue facing west, and at the time in question the courtyard was separated from the outside public sidewalk by a stone wall upon which there was an iron fence. The stone wall was twenty inches in height above the courtyard platform, the iron fence being thirty inches high from the top of the stone wall. At the extreme west end of the courtyard platform there was a drainage /channel or ditch fifteen and one half inches wide con structed of brick, which extended from north to south along the length of the platform. In the middle of said ditch and about opposite the middle door of the church, the depth of the ditch was four inches. The depth gradually decreased toward the north until it reached a depth of about three inches, and to the south until the depth was about two and one half inches. Said drainage channel was at the base of the stone wall which formed the western boundary of the courtyard in front of the church. The purpose of this ditch was to drain off water from the courtyard or platform. At the head of the north stairs there was a light mentioned. A similar light on a similar standard was at the on a standard which extended upward above the iron fence above head of the south stairs.
Plaintiff testified that she did not see the ditch on the evening that she fell; that, as she was forced backward by the crowd coming out of the church, she at first glanced around and saw that the way back of her was clear but that thereafter she did not look back of her.
Mrs. Hannah Winkler testified for plaintiff that the lights at the head of the north and south, stairs were on at the time, it being about dusk, but that the lights did not show the condition of the drain channel on the platform because of the shadow that was cast on the ground at the place where the ditch was located.
Father Reintjes testified that at the time of the accident he was vicar or pastor of the Rock Church and had been such for about six years before the accident occurred; that, as pastor, he was in charge and control of the church property and had the duty and authority to see that ordinary repairs were made, but the duty and authority to see that ordinary repairs were made, was subject to the approval of his superiors not only in the community of which he was a member but was also subject to the approval of the Archbishop of the Diocese of St. Louis; that, after the accident in which plaintiff was injured, he put boards into the drain on the courtyard platform; that the reason he put the boards in the drain...
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