Winters v. Hassenbusch
| Decision Date | 06 January 1936 |
| Docket Number | No. 18306.,18306. |
| Citation | 89 S.W.2d 546 |
| Parties | WINTERS v. HASSENBUSCH. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.
"Not to be published in State Reports."
Action by Nellie Winters against Joseph Hassenbusch. From a judgment for the plaintiff, the defendant appeals.
Affirmed.
Brown, Douglas & Brown, of St. Joseph, for appellant.
B. L. Kaufmann and F. J. Frankenhoff, both of St. Joseph, for respondent.
This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $2,500.00 and defendant has appealed.
The facts show that defendant owns a five-story office building in St. Joseph, Missouri, known as the Ballinger building; that on October 15, 1933, in mid-afternoon, plaintiff was injured when she tripped on a metal strip upon a step in the stairs of said building. The negligence alleged in the petition was that defendant negligently permitted a defective metal strip on the stairway to be loose and to extend above the level of the step and the place of the fall to be dimly lighted and dangerous, in consequence of the combination of all of which plaintiff caught her foot on the metal strip and fell down the stairway, to her injury.
Plaintiff had not been in the building for a year prior to the day she fell. On that day, before she fell, she, in answer to an advertisement, had gone to a cosmetic agency on the fifth floor of the building, seeking employment. She was told to return the next day, which was Sunday. This she did but the elevator service had been discontinued at noon of that day and plaintiff was obliged to use the steps in both going up and coming down. She went up to the cosmetic agency and "waited a little while" but "couldn't get in" so she retraced her steps. Walking down the stairs, she arrived at the landing between the first and the second floor where she fell.
Leaving the second floor for the first by means of the stairway one first walks toward the north down a short flight of steps, which leads to a landing extending east and west. It is then necessary for one to walk to the west side of this landing and proceed southwardly down another flight of steps. Plaintiff fell on the top step on the west side of the landing. To the north of the east side of the landing is the shaft in which the elevator runs. To the north of the west side of the landing there is a large window, which admits light from the outside of the building. Between this window and the outside of the building is a narrow "lobby" about ten or twelve feet in length. The upper half of the window is of clear glass, the lower half being frosted so that the light would not penetrate through the lower half of the window as well as the upper half.
The walls of the building at the place in question were painted a dark color and at the time plaintiff fell it was cloudy outside. There was an electric light over the landing in question, which was "supposed to be burning all of the time," but was not lighted at the time plaintiff fell. She was caused to fall by reason of said metal strip, which was worn and ragged in several places and, for a distance of three or four inches from east to west in the middle of the step, it projected upwards one-half to three-quarters of an inch.
Plaintiff testified that she did not see the protruding metal but felt her heel catch on something, causing her to fall. At the trial plaintiff based her case upon the negligence of the defendant in permitting the defect to remain in the stairs combined with insufficient light.
Defendant contends that his demurrer to the evidence should have been sustained. In this connection he admits that there was sufficient testimony from which the jury could find that there was a defect in the stairs, but insists that the undisputed evidence shows that there was sufficient light for the defect to be plainly seen by persons using the stairs while exercising ordinary care. Therefore, defendant says that the defect did not amount to a dangerous condition and that, in any event, plaintiff was guilty of contributory negligence, as a matter of law.
Plaintiff introduced as a witness, one Thomas H. McDonald, who had had an office on the fifth floor of the building for a period of five months prior to the time plaintiff fell. He testified that the metal strip over which plaintiff fell had protruded above the stairway from one-fourth to one-half an inch for at least ten days prior to plaintiff's fall; that there was a bulb in the light socket over the landing which had been out at least three weeks prior to that time; that at the time of the fall the witness was descending the stairs to the rear of plaintiff; that there were two men between her and the witness; that he did not see plaintiff trip over the metal strip but saw her as she fell; that there was light enough for him to see her fall; that the "elevator concealed some of the light"; that some of the light came in through the window in question, enough to "see very little"; that he had been up and down the steps "lots of times"; that it was light enough so that the defect could have been seen "if you noticed it," "if you looked at it." * * *" * * *"
Plaintiff's witness, H. M. Witt, testified that he was back of plaintiff when she fell; that he was too far back of her to see plaintiff "when she first started to fall."
He further testified that he did not remember whether he noticed the defect in the stairway as he came into the building on that day. He was then asked: * * *" * * *"
Plaintiff testified that when she was in the building on the previous day before her fall she used the elevator and not the stairs and did not know of the defect in the stairway at the time she fell; that as she went up the steps she did not notice anything wrong with them at the place where she fell, "I could hardly see the steps." ; that she felt her foot catch on about the middle of the steps; that she did not at any time see the defect in the stairs. "
She further testified that as she walked up these stairs she paid no "particular" attention to the steps; that just north of the point where she fell was a large window in the wall. * * *" ...
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