6 Mo. App. 85 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This is an action by the widow of Frederick Buesching for damages. The allegations of the amended petition are that the St. Louis Gas-Light Company, on January 22, 1876, owned a building on the north-west corner of Pine Street and the alley between Second and Third Streets, in St. Louis ; that the cellar-way to the building was carelessly and negligently constructed, and left open, and left without a proper gate, by reason of which plaintiff’s husband, at the date aforesaid, fell into said cellar-way and lost his life. The answer of the Gas-Light Company denies all the material allegations of the petition, and alleges that deceased came to his death by his own negligence. There is no answer by defendant Barnes. It would seem that the action must hav¿ been dismissed as to him before the amended
The testimony shows that the Gas-Light Company had been for about twenty-five years the owner of the building in question, and Barnes was the tenant in possession at the time of the accident, under a lease from the Gas-Light Company. The building is on' the north side of Pine Street, and runs back along the west line of the alley that extends through the block between Second and Third Streets. The street is in the business part of the city, is much frequented in the daytime, and almost deserted after business hours. The street is about forty feet wide, with sidewalks about-five feet wide. For the distance of the half-block between the alley and Third Street the houses on the north side of the street are set back two and a half feet further from the line of the street than are the houses on the rest of the street for four blocks, from Fourth Street to the Levee. From the wall of the Gas Company building to the curbstone the distance is nine feet. Immediately in front of the building is a descent into the cellar, two feet five inches wide and three feet nine inches deep, with five steps. Parallel with the street an iron railing extends along the opening. This railing stops at the top step, about two feet from the east end of the opening; so that one going into the cellar can step on to the second step, from the sidewalk on the south side, or front, of the building. The entire length of the opening is eight feet, six feet of which are protected by the railing. The alley is fifteen feet wide ; and the top step to the cellar, which is eight inches wide, extends to the alley; so that the descent into the cellar begins just eight inches west of the east wall of the house. There are several openings for cellar-steps of the same character in the block.
Buesehing was a saloon-keeper, and up to a period about eighteen months before his death he had kept an eating-house and saloon for six years at the corner of Second and Pine Streets, half a block from this cellar-way. At the time of
On the part of the defendant, persons who had been officers of the Gas-Light Company for many years, one of them for more than twenty years, and who said that it would be their business to know if such a thing ever occurred, testified that they had never heard of any one falling into the entrance to the cellar of the gas building, or being injured there. And evidence was introduced that the cellar-opening was of a kind usual on the streets of St. Louis.
At the close of plaintiff’s case, defendant offered an instruction in the nature of a demurrer to the evidence, which was refused.
We think that this instruction should have been given. It is clear from the evidence that one using that ordinary care which a prudent and sober man uses in walking along the streets at night would not have fallen into this cellar-way. There was no eye-witness of the accident; but the mere fact that a citizen fell headlong into such a passageway, on a street with which he was familiar, within half a block and in full view of a business-stand that he had occupied for years, raises, we think, a presumption of negligence directly contributing to the injury, which, in the absence of something in rebuttal, is necessarily fatal to a recovery. Had this cellar-way been a sheer precipitous descent, it would undoubtedly have been culpable negligence to have it without a railing at the east end, and exposed for a distance of two feet along the line of the sidewalk; but it does not appear to have been any want of ordinary care in the owner of this building not to extend the railing on the south side past the head of the steps, and not to have a gate
It is plain that there is a presumption that no one walking along Pine Street at night, with a gas-light burning within thirty-five feet of him, using ordinary care and keeping his eyes about him, would fall down such a cellar-way., as this. In an incautious moment the most prudent man might take a backward step, or a step sideways, and fall down any staircase ; but it does not follow from this that a cellar-entrance may not be built in a frequented street, or that it must be guarded by a gate, and that the absence of such a guard is a want of ordinary care which will subject the property-owner to an action at the hands of any one who falls down the steps.
The want of ordinary care on the part of deceased is a presumption raised by the undisputed facts of the case. It is claimed by appellant that the want of proper care on the part of deceased is admitted by the pleadings. Por the purposes of this case, however, there is no such admission.
At the instance of plaintiff, the trial court directed the jury that if the cellar-entrance was dangerous to passengers, owing to the manner of its construction, and deceased was in consequence injured whilst exercising ordinary care, they should find for plaintiff; and further declared that ordinary care means that degree of care which may reasonably be expected of a person in the situation of deceased at the time of the accident. This definition of ordinary care is given in some text-books. But in view of the evidence in this case it was calculated to mislead. There was some testimony in this case from which the jury might infer that the deceased was not entirely sober at the time of .the accident. A man not entirely sober might exercise all the care possible for one in his'condition, but that would not be ordinary care as the phrase is used in reference to cases of this kind.
It is claimed by appellant that plaintiff should have followed the language of the statute in the instruction asked by him and given by the court as to the measure of damages, and that that instruction was bad because it did not direct the jury to have regard to the mitigating or aggravating circumstances of the case. It cannot, however, be error to omit these words where the case presents no circumstances of mitigation or aggravation, and we see nothing in this objection in the present case.
In this case, as presented, there are the two facts of the
The judgment is reversed and the cause remanded.