Weinel v. Hesse

• Decision Date: 02 November 1943
• Docket Number: No. 26467.,26467.
• Citation: 174 S.W.2d 903
• Parties: WEINEL v. HESSE et al.
• Court: Missouri Court of Appeals

174 S.W.2d 903

WEINEL v. HESSE et al.

No. 26467.

St. Louis Court of Appeals. Missouri.

November 2, 1943.

Appeal from St. Louis Circuit Court; William K. Koerner, Judge.

"Not to be reported in State Reports."

Personal injury action by Cay R. Weinel against Joseph Hesse and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

Sam Weber and B. Sherman Landau, both of St. Louis, for appellant.

Moser, Marsalek & Dearing and William H. Allen, all of St. Louis, for respondents.

McCULLEN, Judge.

This action was brought by appellant, as plaintiff, against respondents, as defendants, to recover damages on account of personal injuries alleged to have been sustained by plaintiff as the result of a fall on the night of January 31, 1941, down a flight of steps of a building, in the City of St. Louis, owned by defendants. A trial before the court and a jury resulted in a verdict and judgment in favor of defendants. Plaintiff's motion for a new trial having been overruled, he duly appealed.

The evidence shows that the defendants owned a two-and-one-half-story brick building at the northwest corner of Eighth and Soulard Streets in the City of St. Louis, the second floor of which was occupied by three families, named Kinsey, Barnes and Burns, respectively. There were two sets of rooms on said second floor. They were occupied, respectively, by the Kinsey family and the Burns family as tenants of the owners of the property. The Barnes family occupied two of the rooms rented by the Kinsey family. The Kinsey family occupied the east part of the second floor. The Barnes family occupied the center part, and the Burns family the west part. There was no hallway or passageway between the rooms occupied by said families. A second floor back porch attached to the building was used in common by all the occupants of the second floor. Immediately north of the building was a passageway leading from Eighth Street to the back yard of the premises. The three sections of the second floor occupied by the families named were accessible by means of the porch mentioned, which was reached by steps leading from the rear yard up to the second floor. The porch and the steps were constructed of wood. The Kinsey family had, in addition to the rear steps and porch, the use of another stairway which led from Eighth Street to the side of the Kinsey section of the rooms. The only toilet facilities provided were at the west end of the rear courtyard and all three families used, in common, the porch and steps connected therewith to go to and from the toilet facilities. It is conceded that the porch and steps, as well as the rear yard, were unlighted and were very dark in the nighttime, and that no artificial light had ever been provided for the use of the tenants, their guests, or invitees.

It appears from the evidence that on January 31, 1941, plaintiff, who was then superintendent for the Life and Casualty Insurance Company, made a call at the Barnes' family rooms to collect insurance premiums which were then in arrears to such an extent that the policies were about to lapse. He had never visited the premises before and went there on that occasion because of the absence of the regular debit insurance man for that district. He arrived at the premises about seven o'clock in the evening. His testimony is that he went into the areaway at the rear of the building where there was no light; that he felt his way through the dark areaway to the banister and ascended the rear steps to the second floor, then felt his way along the porch to a door where he knocked and was admitted into the Barnes' family rooms; that he concluded his business in about ten or twelve minutes and left the Barnes' family rooms to descend the steps; that after the door of the Barnes' family quarters had been closed behind him he felt his way on the porch along the side of the wall of the building, intending to descend the steps to the ground to leave the premises. In this connection, plaintiff testified: "I wanted to descend to the first floor in order to walk to my automobile in the front of the building. I walked along cautiously, feeling my way with my left hand along the wall on the second floor porch. As I walked along slowly in the dark I guess I came to the end of the top part of the second floor porch and I went out into space and landed about six steps from the bottom of the stairway. There are fifteen steps in the stairway."

It appears that two young girls were standing near the foot of the steps in the yard and, hearing plaintiff fall down the steps, they ran over to assist him; also, later, Mr. Barnes and Mr. Kinsey assisted plaintiff to his automobile and he was taken to the City Hospital. His principal injury was a laceration of the long head of the biceps muscle which resulted in permanent impairment of his right arm.

Plaintiff, in his amended petition, referred to the back porch as a "hallway," and to the back steps leading up from the yard to the porch as a "stairway." He charged in his petition that said "hallway and stairway" were unlighted and were for that reason dangerous and unsafe; that defendants knew this, or by the exercise of ordinary care would have known it in time to have remedied such dangerous condition by providing adequate light; and that plaintiff's injuries proximately resulted from the failure of defendants to furnish such light. Among other allegations in his amended petition, plaintiff charged that the steps were old, worn, loose, and defective, and not reasonably safe; and that in failing to have said "hallway and stairway" lighted at night defendants violated certain ordinances of the City of St. Louis known and numbered as Sections 4647, 4838, and 5037 of the Revised Code of St. Louis, 1936.

Plaintiff complains that the trial court erred in permitting defendant Carrie Hesse to testify that no one had ever called on her to put a light on the back porch or steps, and argues that the fact that defendants had not been specifically directed to provide such a light constituted no defense to the action; that such testimony only served to mislead the jury. The complaint is based upon the following testimony of said witness:

"Q. Did anyone ever call on you to put in a light? A. No.

"Q. Did anyone ever complain to you that there was anything wrong with your steps? A. No.

"Mr. Landau: I object for the reason it is immaterial; it is not the measure of liability in this case; it is immaterial.

"The Court: Objection overruled."

The record thus shows that the first question above set forth, which was the one concerning the light, was answered without any objection. Furthermore, there was no objection to the second question until after the answer had been given; nor was there any motion made to strike out either of the two answers. Under the settled rules governing practice, we would not be justified in sustaining this point of plaintiff. It is the established law that an objection to a question which is not made until after the answer has been given comes too late and will not be considered on appeal unless the record shows that the witness answered so quickly that there was no time to object. There is nothing in this record to show that the answers herein were given so quickly as to prevent an objection being made, and we must, therefore, hold against plaintiff on this point. Peperkorn v. St. Louis Transfer R. Co., 171 Mo.App. 709, 729, 730, 154 S.W. 836; Carter v. Zollinger, 231 Mo.App. 1153, 1157, 85 S.W.2d 189, 191; Rockenstein v. Rogers, 326 Mo. 468, 485, 31 S.W.2d 792, 800.

During the direct examination of defendant Joseph Hesse, the following occurred:

"Q. Mr. Hesse, something was said here about people having complained about the condition of those steps; has anyone ever complained to you about the steps being defective, or anything being wrong with them? A. No.

"Mr. Landau: I object to that as being improper, irrelevant and not being the measure of liability in the case.

"The Court: Objection overruled."

Again, it appears that plaintiff's objection was not timely made. It came after the question was answered. Nor was there any motion made to strike out the answer. Under the authority of the last above-cited cases, as well as many others too numerous to be cited, we must hold against plaintiff on this point.

Furthermore, it is also to be noted that the question directed to Mr. Hesse did not relate to the furnishing of light, but to whether the steps were defective or whether there was anything wrong with the steps. The issue of defective steps was abandoned by plaintiff in submitting his case to the jury. He asked no instruction thereon; hence, the testimony on that point was immaterial and could not possibly have harmed plaintiff. Dwyer v. St. Louis Transit Co., 108 Mo.App. 152, 160, 83 S.W. 303.

The next contention of plaintiff is that the court erred in refusing to give instruction "G" requested by him. Said instruction is as follows: "The Court instructs the jury that it is not necessary that defendants should have had actual notice of the unsafe and dangerous condition referred to in evidence, if you find there was an unsafe and dangerous condition. If you find that the stairway mentioned in the evidence was not illuminated in the nighttime and by reason thereby was dangerous and unsafe, and that such dangerous and unsafe condition had existed a sufficient length of time, before the injury, if any, to plaintiff, to have enabled the defendants by the exercise of ordinary care and diligence to have known of the existence thereof and remedied the same, then proof of actual notice is not necessary."

Plaintiff strongly insists that said offered instruction was a necessary explanation of the charge to the jury contained in his instruction 1; that it became necessary that the jury be fully instructed upon the applicable law because defendants had emphasized before the jury the fact that they had not been...