Ziegler v. Elms, 50414
| Decision Date | 08 March 1965 |
| Docket Number | No. 2,No. 50414,50414,2 |
| Citation | 388 S.W.2d 839 |
| Parties | Mildred L. ZIEGLER, Appellant, v. Edward F. ELMS and Marie E. Elms, Respondents |
| Court | Missouri Supreme Court |
Stemmler & Stemmler, St. Louis, for appellant.
Heege & Heege, Clayton, for respondents.
PRITCHARD, Commissioner.
The parties are in agreement that plaintiff, sister-in-law of defendants, was a social guest, and was a licensee, for whose injuries defendants, as owners and occupiers of their private residence, were liable only for 'wantonness or some form of intentional wrong or active negligence.' Wolfson v. Chelist, Mo., 284 S.W.2d 447, 448[2-4].
Plaintiff was injured when she fell down a stairway leading from defendants' kitchen. The stairway led first to a landing (which led through a doorway to a patio) thence to a basement rathskeller. There were three steps on the stairway, and plaintiff caught the heel of her shoe on a metal molding strip or 'nose' which was attached to the second step from the top. She alleged as negligence (1) That defendants negligently installed and constructed the metal nosing in such manner that it would recurringly become loose and the edge thereby raised, thereby resulting in an unsafe and dangerous condition; (2) That defendants used a negligent method of tightening said strip on the occasions when it became loose; and (3) That defendants, although fully apprised of the constantly recurring unsafe and dangerous condition, failed to warn plaintiff thereof.
At the close of all the evidence the court directed a verdict against plaintiff and in favor of defendants on her $25,000 action for personal injuries and entered judgment against plaintiff thereon. The argument of plaintiff on this appeal is first that she made a submissible case upon the theory of defendants' active negligence. The evidence stated favorably to plaintiff is as follows:
Previous to about 1949, the tread on the stairway steps was wood. About that year, Mr. Elms personally installed tile on the horizontal surface of the step. He installed also an aluminum strip on the edge of the stair tread. This strip was 'L' shaped, the shorter part, 1/4 inch, resting horizontally on the top part of the linoleum or tile, and the longer part, 7/8 inch, extending downward at the edge of and for the thickness of the tread. The strip was fastened to the edge of the tread by nails or brads which were driven into the vertical position of the strip midway between the top and bottom thereof and at about 4 inch intervals. There were no nails driven in on the top of the strip, and no screws were used in connection with the installation. The aluminum strip ran the entire width of the stairway, which was 37 or 37 1/2 inches between the walls.
The strip of metal had been on the stair tread from the time of installation, around 1949, until the day of the accident, October 5, 1958. Two or three times each year Mr. Elms would tap in the protruding nails (which were the same as originally installed) on the stair tread to keep the aluminum strip tight on the step. He would do this only if he saw any nails which were loose just when he looked at them as he went up and down the stairway. He testified that it would naturally follow if the nails were loose that the aluminum strip would protrude somewhat out from the tread or the tile. The nails would not come loose in any particular portion of the step and Mr. Elms would cover the entire area in tapping them back into place with the hammer.
On the date of her injury, plaintiff was upstairs in defendants' home. Mr. Elms and plaintiff's husband were also upstairs watching a baseball game. Mrs. Elms was in the basement doing laundry. Plaintiff started down the steps to the basement to see if she could help and to tell Mrs. Elms she was going to use the telephone. As she started down the stairs, walking in the center of the step, she looked down in a normal manner and did not notice anything unusual about the steps. On the second step her left heel got caught on the metal edge of the step, and she fell to the halfway landing thus receiving her injuries. After she fell she could see the step and the metal strip was loose (but not hanging) and the nails were extending out a little way. Mr. Elms also testified that the nails were protruding and the strip of aluminum was loosened after plaintiff's fall. After the accident Mr. Elms got his hammer and hammered the nails in on the step. Prior to the accident defendants mentioned nothing about the step to plaintiff. She was accustomed to using the steps in going to the rathskeller and to the patio and yard area, and she never did notice anything unusuall about the steps.
Plaintiff's argument in support of her premise that she made a case of active negligence against defendants is that a prior faulty erection or construction coupled with a failure to warn can be a sufficient affirmative act of negligence. There is no evidence in this case that defendants initially installed the aluminum stair molding or nosing in a manner not amounting to due care, that the materials were in any way defective, or that the materials used were in any way unfit or unsuitable for the purpose for which they were used. Although Mr. Elms installed the strips himself, there was no evidence that he did so in an improper manner. Although when the strips were installed nails were used to secure the strip to the stair step, there was no evidence that they were not suitable, or that screws (which were not used) would have been any more suitable than nails for this purpose. It is mere surmise and speculation on the part of plaintiff in her brief (and would have been so on the part of the jury) that screws would have held the strip tighter to the step than the nails over the years when the steps were in constant use. There was no evidence that the strip would have come loose and the nails would have come out if they had been put in from the top of the tread. The only evidence on the use of the nails came from defendant, Mr. Elms, that the nails were furnished with the strip of aluminum (made for use on a stair tread) for installation. Plaintiff's first pleaded assignment of...
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...and warns the licensee of known ultrahazardous conditions and dangerous substances.' 33 Mo. Law Review 93, 94. See also Ziegler v. Elms, Mo.Sup., 388 S.W.2d 839 (1965), and Richey v. Kemper, Mo.Sup., 392 S.W.2d 266 We are of the opinion that plaintiff cannot recover under the law stated in ......
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...dangerous to life or limb, such as a trap, pitfall or dangerous hole would subject him to liability under this rule.' In Ziegler v. Elms, Mo., 388 S.W.2d 839, 842, in a suit by a social guest (licensee) for injury suffered by tripping on a loose metal molding strip on a stairway, the court ......
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...premises has been held to be the equivalent of active negligence. Porchey v. Kelling, 353 Mo. 1034, 185 S.W.2d 820, 822; Ziegler v. Elms, Mo., 388 S.W.2d 839, 841; Warner v. Lieberman, D.C., 154 F.Supp. 362, 365; Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 194 P.2d 706; Dunn v. Bo......
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