Wilson v. Jones

• Decision Date: 17 January 1916
• Docket Number: No. 11810.,11810.
• Citation: 182 S.W. 756
• Parties: WILSON v. JONES et al.
• Court: Missouri Court of Appeals

182 S.W. 756

WILSON v. JONES et al.

No. 11810.

Kansas City Court of Appeals. Missouri.

January 17, 1916.

Rehearing Denied February 7, 1916.

Appeal from Circuit Court, Jackson County; A. C. Southern, Judge.

"Not to be officially published."

Action by William A. Wilson against Mary C. Jones and W. D. Jones. From a judgment for plaintiff against both defendants, both defendants appeal. Reversed as to W. D. Jones on confession of error, and affirmed on the merits as to Mary C. Jones.

Sebree, Conrad & Wendorff, of Kansas City, for appellants. T. F. Railsback and Reed & Harvey, all of Kansas City, for respondent.

JOHNSON, J.

Plaintiff sued to recover damages for personal injuries he sustained on the night of October 10, 1913, by falling into an unguarded and unlighted areaway on premises owned by defendant Mary C. Jones, in Kansas City, which he had entered on the implied invitation of the owner. The answer is a general denial and a plea of contributory negligence. The jury returned a verdict for plaintiff for $700, judgment was rendered thereon against both defendants (who are husband and wife), and, after their motions for a new trial and in arrest of judgment were overruled, both defendants appealed.

Plaintiff confesses that under the decision of the Supreme Court in Boutell v. Shellaberger, rendered March 2, 1915, and reported in 264 Mo. 70, 174 S. W. 384, L. R. A. 1915D, 847, the judgment was erroneously rendered against the defendant husband, and should be reversed as to him, but argues that it should be affirmed as to Mary C. Jones, the owner of the property. Counsel for Mrs. Jones contend that her request for a peremptory instruction should have been sustained, on the ground that the evidence entirely fails to support the allegation that plaintiff's injury was caused by negligence of Mrs. Jones, to whom we shall hereafter refer as the defendant, and does show, as a matter of law, that the injury was caused by plaintiff's own negligence.

Defendant was the owner of a three-story and basement apartment building at the southeast corner of Fourteenth street and Troost avenue. There were six suites of rooms, two on each floor, occupied by various tenants, and defendant retained control over the stairways, halls, and other portions of the building used in common by the tenants. At the rear were latticed porches for all the apartments, and the rear stairway, ascending in the space between the north and south porches, also was latticed, except at the entrance from the alley. The basement floor, on which were the apartments of the janitor employed by defendant, was 40 inches lower than the alley, and an areaway on the level of the basement floor extended eastward from the east wall of the building proper to the east line of the rear porches. A wall between the areaway and the alley was 6 or 7 inches higher than the alley, and was capped by stone coping 21 inches wide. The top of the coping was 4½ or 5 feet below the outer edge of the first floor of the rear porch and stairway structure, and this space was open at the entrance to the stairway from the alley. The stairway started from the floor of the areaway, and, ascending, turned from an east to a north direction, attaining the latter direction at a step which was at the top of the coping and projected over and rested upon the coping 6 or 7 inches. Thence upward, to the landing on the first floor, the east line of the stairway was on a line with the step just mentioned, so that the top of the coping south of that step served as a narrow approach to the stairway to a person coming from the alley, as plaintiff did just before his injury. He and the driver of a motor truck were engaged in delivering baggage, and had a trunk weighing 150 pounds to deliver to an apartment on the third floor. In obedience to a notice posted at the front entrance they drove to the alley, unloaded the trunk, and carried it down the alley to the rear entrance, intending to take it up the stairway to the third floor.

Plaintiff had the rear end of the trunk and followed the lead of the driver. The course they had to take was, first,...