Woodley v. Bush

• Decision Date: 16 November 1954
• Docket Number: No. 28922,28922
• Citation: Woodley v. Bush, 272 S.W.2d 833 (Mo. App. 1954)
• Parties: Malinda Lee WOODLEY (Plaintiff), Respondent, v. Ermine BUSH (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 833

272 S.W.2d 833

Malinda Lee WOODLEY (Plaintiff), Respondent, v. Ermine BUSH (Defendant), Appellant.

No. 28922.

St. Louis Court of Appeals, Missouri.

Nov. 16, 1954.

Rehearing Denied Dec. 17, 1954.

Wilson & Wilson and Margaret B. Wilson, St. Louis, for appellant.

William C. Barnett and Alvin L. Mayer, St. Louis, for respondent.

WOLFE, Commissioner.

This is an action for damages arising out of personal injuries. The plaintiff rented and lived in one of a number of apartments in a building belonging to the defendant. She charged that while she was returning to the apartment over a walk in the rear yard of the apartment house she was caused to fall because the defendant had negligently failed to clean ice and snow from the walk and that there were holes and projections that made the walk dangerous. There was a verdict and judgment for the plaintiff in the sum of $7,500, and the defendant prosecutes this appeal.

Plaintiff was a laundress who worked by the day for various people. She resided at 4320 Washington Avenue in the City of St. Louis, where she rented a two-room furnished apartment. It was one of seventeen apartments in the building.

At the front entrance to the house there were five steps reached by a concrete walk from the street. There was also a side entrance. At times the plaintiff used the front entrance and at other times, in going to and from her work, she would use the side entrance and leave or enter the premises by way of an alley that abutted in the rear. The plaintiff testified that on the morning of December 26, 1951, she left for work by going out the side door. She chose this exit because the steps leading down to the ground level were inside the building and the front steps were covered with ice and snow. The path the plaintiff traveled from the side door to the alley is not clearly established. She said that she went about 14 feet out from the side of the house. She had about 35 feet to walk before reaching the alley. This area was covered with ice and snow. She said that there was a smooth concrete walk extending from the house toward the garage but that it did not go all the way. The alley that she entered was also covered with ice.

It was when the plaintiff was returning from work that she fell. She stated that she had walked eastwardly up the alley to the back of the yard and fell en route to the side door. Just where the plaintiff fell is not shown by the evidence. She said that she was following the same route that she frequently used.

Plaintiff put in evidence a certified copy of the records of the St. Louis Station of the United States Weather Bureau. This showed that there had been intermittent periods of freezing rain and snow from the 19th of December, 1951, up to and including December 26, which was the day that the plaintiff fell. On that day the report shows that snow fell from 6:00 a. m. to 6:30 a. m. and from 9:05 to 11:30 a. m.

The defendant called as a witness a man employed as caretaker of the apartments. He testified that he had spread rock salt on the walks throughout the period of ice and snow. He also testified that there was no walk leading from the apartment to the alley. Pictures of the rear area were introduced and they show no walk leading from the alley to the house.

The main point urged by the appellant is that a landlord is not liable for injuries to a tenant caused by the natural accumulation of ice and snow upon walks reserved by the landlord for the use of the tenants in a multiple dwelling house.

There is a well-established rule that where premises are let to several tenants, each occupying a different portion of the same house but two or more using the same halls, passageways, porches, etc., the landlord is held to have reserved such facilities for common use and is consequently in control thereof. His duty under such circumstances is to use ordinary care to keep such places in a reasonably safe condition. Schneider v. Dubinsky Realty Co., 344 Mo. 654, 127 S.W.2d 691; Gray v. Pearline, 328 Mo. 1192, 43 S.W.2d 802; Allbritton v. Property Servicing Co., 361 Mo. 1041, 238 S.W.2d 401; Brewer v. Silverstein, Mo.Sup., 64 S.W.2d 289; Hieken v. Eichhorn, Mo.App., 159 S.W.2d 715.

There is, however, a further rule, which is stated in 52 C.J.S., Landlord and Tenant, Sec. 417d, page 46, as follows:

'In the absence of statute or agreement, there is generally no duty on the part of the landlord to his tenant to remove from the roof, steps, or walk, snow or ice which naturally accumulates thereon, and he is not liable for injuries caused thereby. This rule applies also to such natural accumulations on sidewalks adjacent to houses rented to several tenants or to a building of which the landlord, as an occupant, is in control of a part.'

It appears that the appellate courts of Missouri have never passed upon the matter, but the rule as stated in Corpus Juris Secundum finds support in a majority of the states. Rosenberg v. Chapman Nat. Bank, 126 Me. 403, 139 A. 82, 58 A.L.R 1405; Boulton v. Dorrington, 302 Mass. 407, 19 N.E.2d 731; Burke v. O'Neil, 192 Minn. 492, 257 N.W. 81; Turoff v. Richman, 76 Ohio App. 83, 61 N.E.2d 486; Oerter v. Ziegler, 59 Wash. 421, 109 P. 1058. There are two cases by the Kansas City Court of Appeals...