178 Mo. 635 | Mo. | 1903
This is an action for damages for personal injuries. The petition upon which the case was tried is as follows:
“Plaintiff for her third amended petition states that at the times hereinafter stated the defendants Helena Wallhauser and Henry W. Wallhauser were the owners of certain premises fronting on south Second street in the city of St. Louis, Missouri, being the northwest corner of south Second and Valentine streets, and known as number 425 South Second street; that defendant Andrew W. Schrick was their lessee and tenant, and that he and the defendants John D. Graul, John Nester and R. Thomas Nester are and wer e at said times tbe tenants in possession of said property and premises, and that the defendant, the city of St. Louis, is and was at all of said times a municipal corporation organized and existing under the laws of the State of Missouri; that at said times said South Second street at said number 425 and the sidewalks pertaining thereto constituted public highways of said city.
‘ ‘ Plaintiff states that on the 14th day of J une, 1897,
“But plaintiff says that the defendants so carelessly and negligently conducted themselves in reference to the said opening or excavation, caused by the leaving open of said cellar door, that the same was left unguarded and without sufficient or any harriers to prevent persons passing by from falling into the same and that the plaintiff on the said 14th day of June, 1897, about 8:30 o ’clock p. m., while lawfully and properly passing along said' sidewalk and .street stepped into the opening or excavation thus left by said open door and was thereby violently precipitated upon the sidewalk and seriously injured about her leg and person; that in consequence of such injuries she was confined to her bed for a longtime and has suffered great pain in body and mind to her damage in the sum of $2,500; that she was disabled for the performance of her usual or any labor and has lost her earnings since said date and will hereafter lose the same to her damage in the sum of $2,500; that she was compelled to incur large expenses for medicines and
“Wherefore by reason of the premises plaintiff says that she has been damaged in the sum of ten thousand dollars for which she asks judgment with costs of suit.”
The separate answers of the defendants, the city of St. Louis, John Nester, R. Thomas Nester and John D. G-raul, each denied the allegations of the petition, and set up a plea of contributory negligence. The answer of'defendant Schrick was a general denial, and the separate answers of the defendants Wallhausers was a general denial, and a plea that the premises were, at the time alleged in the petition, in the possession of the defendant Schrick as lessee, or some one under him as subtenant. Issue was joined by reply. A trial was had on March 23d and 24th, 1900, before Hon. Rudolph Hirzel, and a jury, in the St. Louis County Circuit Court, to which the case had been taken by successive changes of venue, from the St. Louis City Circuit Court in which the suit was instituted.
The undisputed facts developed by the evidence are, that on the 14th of June, 1897, the defendant Helena Wallhauser was the owner of the premises known as number 425 South Second street; that .theretofore, by a written lease duly executed by her and her husband, the defendant Henry W. Wallhauser, dated December 9, 1895, they had leased the premises to the defendant Andrew W. Schrick for a term of three years, beginning on the first day of January, 1896, at .which date the said Schrick went into possession of the premises in pursuance of the lease. That afterwards by written lease dated December 16, 1896, the said Schrick leased the premises to the defendant R. Thomas Nester for a term
Between 8:30 and 9 o’clock p. m. on the 14th of June, 1897, the plaintiff, an unmarried woman about twenty-two years of age (who was then, as she had been for several months previous'thereto, in the employ of Mrs. Obert), in search of Mrs. Obert’s baby, of whom she had charge and who had escaped from her custody, stepped out of the bakery across the cellar door which was then closed, stepped into the grocery store and picked up her employer’s baby, whom she found therein, immediately returned with the baby on her arm, and stepping across the cellar door as she had done á moment before, fell and hurt her leg, receiving such injuries as dually necessitated the amputation of the limb.
The plaintiff in her testimony gives the following account of the accident:
■“I started to go south to Nester’s grocery right next to Obert’s bakery, and passed over these two cellar doors and they were both closed as I walked over them, I know that; that was the closest way to get to Nester’s store; I was in Nester’s store long enough to pick up the child which I found behind the counter, which I don’t think took a minute, and then I started back to the bakery the same way I had come over the two doors. I didn’t stumble; I fell. The north cellar door was open; it was thrown entirely back; I mean to say that this north cellar door was thrown completely over; lying flat-on the sidewalk; it wasn’t tilted up, but it was thrown entirely over; the south cellar door was in place closed, and the north half of the pair of doors was entirely open; I didn’t fall all the way into the opening; I stepped in with my right foot and fell over the door. I don’t know how far down my foot went; I didn’t fall down into the cellar; as I fell I saw a man with a light'in the cellar; the cellar door was opened during the minute or two I was in Nester’s
The other evidence in the case, so far as necessary, will be noticed in the course of the opinion. --. — ♦raq
At the close of the evidence the court instructed the jury to return a verdict for the defendants Helena Wallhauser, Henry W. Wallhauser, Andrew Shrick, John D. Graul and Johh Nester, refused to give similar instructions as to defendant R. Thomas Nester and the city of St. Louis, and as to these defendants submitted the issues to the jury on instructions. The jury thereupon returned a verdict for all of the defendants, and in due time plaintiff filed her motion for a new trial, which motion coming on to be heard was overruled on the ,10th day of November, 1900, by Hon. John W. Booth, judge of said court, successor of Judge Hirzel, who died after the filing of the motion and before that date, to which ruling plaintiff excepted, and thereupon in due time filed her affidavit for appeal, upon which an appeal was granted with leave to file bill of exceptions within sixty days, within which time the bill signed by Judge Booth was filed. .
The errors assigned for the reversal are, the giving of the peremptory instructions for the defendants the Wallhausers, Schrick and G-raul, instruction numbered 5 for defendant the city of St. Louis, instructions numbered 2 and 3 for defendant R. Thomas Nester, and the overruling of the motion for a new trial by Judge Booth.
(1) The court committed no error in instructing the jury to return a verdict in favor of the defendants Helena Wallhauser, Henry W. Wallhauser, Andrew Schrick, John D. Graul and John Nester. As to G-raul and John Nester the only relation they sustained to the premises was that of guarantors of the payment of the rent and the performance of the other covenants in the lease from Schrick to R. Thomas Nester. The lease contained only the usual covenants, and by their guaranty they assumed no duty to the plaintiff which
(2) The relation of Schrick and the Wallhausers to the premises was that of a landlord whose tenant was in the actual occupation of the premises. The rule in such eases is that the “landlord’s liabilities in respect of possession, are in general suspended as soon as the tenant commences his occupation. But when injuries result to a third person from the faulty or defective construction of the premises, or from their ruinous condition at the time of the demise, or because they then contain a nuisance, even if this only becomes active by -the tenant’s ordinary use of the premises, the landlord is still liable notwithstanding the lease.” [Taylor,Landlord and Tenant (8 Ed.), sec. 174.] As there was no fault or defect in the construction of this cellarway and door, and it was in good repair and condition at the time of the demise to Schrick, and from him to R. Thomas Hester, and at the time of the accident, the only possible ground upon which these landlords could be held liable to plaintiff’s action would be on the' ground that the cellarway and door were per se a nuisance ha the ordinary use to which they were adapted and for which they were intended; and counsel for plaintiff so contends; but we do not think this contention can be maintained. In Fisher v. Thirkell, 21 Mich. l. c. 21, decided in 1870, it was said by the Supreme Court of that State, per Christiancy, J., speaking of such structures: “Judging from the reported cases, the usage or custom of, constructing such work seems to have been, in England for a long period, as g&eral as we know it has been in this country. And, though we find many decided cases in the English books, for private injuries caused by these structures being out of repair, and indictments for obstructing highways and streets in a great variety of ways, we have been cited to no English cases, and have discovered none, in which such works have been held illegal, in themselves, when
(3) Counsel for plaintiff contends that instruction numbered 5 given for the city is erroneous and incon
In Carrington v. City of St. Louis, 89 Mo. l. c. 212, it is thus stated: “It is the duty of the city to keep its streets and sidewalks in a reasonably safe condtion for persons traveling thereon with ordinary care and caution. This duty and a consequent liability extends to those cases where the obstruction or unsafe condition of the street is brought about by persons other than agents of the city. [Bassett v. St. Joseph, 53 Mo. 298; Russell v. Columbia, 74 Mo. 490.] But in such cases it devolves upon the plaintiff to show that the city had notice of the defect or ought to have had knowledge thereof by the use of reasonable care and watchfulness.” Or, as stated in another ease, Buckley v. Kansas City, 156 Mo. l. c. 25: “The law is settled in Missouri that a city is bound to keep the sidewalks in a reasonably safe condition for public use, and that it is liable for injuries received from defects therein of which it had actual notice or which had existed for such a length of time prior to the accident as by the exercise of ordinary care it could have ascertained, and which it had a reasonable time to remedy. [Roe v. Kansas City, 100 Mo. 190; Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317.]”
Now applying these principles to the case in hand:
The plaintiff claims her injuries were caused by the unsafe condition of the sidewalk; that the unsafe condition was produced by one of the lids of the cellar door being open when she returned from the grocery store with the baby in her arms. She testifies that it did not
(4) Instructions numbered 2 and 3 given for the defendant R. Thomas Nester are as follows:
“2. The jury are instructed that if they find from the evidence in the case that the cellar doors in the sidewalk in front of the premises occupied by defendant Nester were constructed and. maintained in a reasonably safe condition for passing over and upon said doors, and they further find that said doors or either of them were opened, at or before the time of the injury complained of by plaintiff, by some person or persons not in the employ or service of the defendant Nester, without the knowledge or consent of defendant, or which by the exercise of ordinary care the defendant could not have known, then the jury will find for the defendant.
‘ ‘ 3. The jury are instructed that if they find from the evidence that plaintiff passed over the cellar door just before the accident and at the time the door was
It is contended that these instructions are erroneous because in conflict with instruction numbered 1 for plaintiff, and because there was no evidence upon which to base them. We see no error in these instructions. If in conflict with plaintiff’s instruction aforesaid, which wa.s an omnibus instruction including both the city and this plaintiff, it is because of error in that instruction in favor of the plaintiff of which she can not complain, and there was-evidence on which to base them, in that, there was evidence tending to show the relation which the parties who opened the cellar door sustained^ to the premises.
(5) Finally, it is contended that Judge Booth, the successor of Judge Hirzel, had no power to overrule the motion for a new trial. This point was directly passed upon in State ex rel. Cosgrove v. Perkins, 139 Mo. 106, the latest deliverance of this court on the subject; in which, we held that the statutory power to sign a bill of exceptions (R. S. 1899, sec. 731), carried with it the coincident power to pass upon a motion for a new trial, and we see no good reason for departing from this construction of the statute.
Finding no reversible error in the record, the judgment of the circuit court will be affirmed.