Karp v. Barton, 164 Mo. App. 389

164 Mo. App. 389 | Mo. Ct. App. | 1912

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of the wrongful death of his minor son. At the conclusion of the evidence the court instructed a verdict for defendant and plaintiff prosecutes the appeal.

It appears defendant owns a three-story brick tenement building numbered 1010-1012 North Ninth street in the city of St. Louis. This building is subdivided into several separate apartments or flats which defendant lets to his tenants for residence purposes. Across the rear end of the building and at each story thereof defendant maintains a porch for the accommodation of the tenants. As we understand the evidence, the building runs east and west, and on each floor there is an apartment known as the south flat and one known as the north flat. The porch referred to extends north and south along the east end of the building and it is said to be common to both apartments or flats on that floor. The particular porch involved here is that on the level of the third floor of the building, and but one stairway leads from the porch below to it. The tenants from either the north or south flat of the third floor are required to pass over the same porch and down the same stairway to the porch below, from whence they pass by another stairway to the earth beneath. Neither the porch on the level with the second or .third- floor is partitioned off as though a portion only was intended for the use of those occupying either apartment, but instead the construction suggests the whole should be used in common by the tenants. Besides the construction of the porches themselves, the record is replete with evidence tending to prove that both the porches at the second and the third floor were common to all of the tenants on those floors. According to the plan of construction, both the porches at the second and third floors are protected by railings or banisters, about three feet in height, which pass from north to south for the full length of the. porch which serves the two apartments. These banisters are constructed of pickets which were nailed between the sill and topmost rail of the banister. The evidence is, that for as much as two months before the day on which plaintiff’s child came to his death, a number of these pickets had been dislodged from their place in the banister so that a considerable space for as much as two or three feet wide was open and unprotected.

Plaintiff’s wife had died but a few days before, and he, together with his three little children, had taken quarters and board with Mrs. Harr, a tenant of the building, 1010-1012, on the first floor thereof, where he was confined to his room through the observance of mourning rites enjoined by the Jewish faith, to which he is a devotee. On the day in question, his infant son, Milton Karp, aged about four years, went out to play with the children of other tenants and in a short time thereafter came to his death by falling from the porch on the level of the third floor of the same building. The little fellow had gone up stairs in company with Abbié Washonr, whose mother lived there, to play. Two other children, plaintiff’s child and Abbie Washonr were playing on the porch together near where the railing or banister was defective by reason of the absence of the several pickets above mentioned. Plaintiff’s son clasped the topmost rail with his hands and was in the act of swinging the weight of his little body through the banister where defendant had suffered the pickets to be negligently removed, when his hold on the banister slipped and he fell to the earth below. Prom the injuries so received, the child died the following day.

At the conclusion of the evidence for plaintiff, the court directed a verdict for defendant, but upon what theory we are unable to perceive. There can be no doubt that plaintiff made a prima facie case for the jury. Though it be true that ordinarily the landlord is not liable to one suffering injury through his negligent failure to repair the premises after letting, the principle is wholly without influence here, for it never obtains with respect to common property. The evidence is abundant to tbe effect that the porch adjacent to the third floor of the building and from which the little child fell to his death is common property used by all of the tenants alike in connection with the tenement they enjoy and over which defendant landlord necessarily reserved, in a measure, the right of control. In such circumstances, where different portions of the same building are let to different tenants with a portion in common for the use of all, there is an implied obligation imposed by the law upon the landlord to exercise ordinary care to keep such common portion of the premises in a reasonably safe condition for such purposes as may reasonably be anticipated to be a proper use of the property for which it is let. As to such common portions of tenement property, the rule proceeds upon the theory that the landlord, not having let it to any one of the tenants, has, of course, reserved control thereof to himself. When an injury results to a third person rightfully upon the premises through the negligence of the landlord with respect to maintaining any portion of such common property, responsibility therefor is entailed against him as a correlative to the obligation and duty to repair. [McGinley v. Alliance Trust Co., 168 Mo. 257, 66 S. W. 153; Herdt v. Koenig, 137 Mo. App. 589, 119 S. W. 56.] Besides it appearing that defendant’s agent who had charge of repairs had long since been notified of the defective condition of the porch, it is in evidence, too, that the porch railing had been thus defective for as much as two months theretofore. On this evidence, the jury could, of course, find that defendant had constructive knowledge of the defective condition of the banister and notwithstanding had negligently failed to observe his obligation to repair it, to the end that it might be reasonably safe. That plaintiff’s son was rightfully upon the premises no one can doubt, for he with two other children had gone upon the third story porch to play with Abbie Washour whose mother was the tenant in the apartment adjacent and appurtenant in part to which was the defective porch. As it is within the reasonable intent of a demise of residence property the tenant may enjoy the social calls of the family friends, no one can doubt that the obligation of the landlord extends the same to those socially visiting or calling upon members of the tenant’s family, as. it does to the tenant himself. [Herdt v. Koenig, 137 Mo. App. 589, 596, 119 S. W. 56; Henkel v. Murr, 38 Hun (N. Y.) 28.]

The mere fact that plaintiff’s little son swung his body through the third story banister while holding to the rail and thereby came to his death is not* sufficient to preclude a right of recovery as a matter of law on the score of contributory negligence on the part of the child. Obviously the question requires no discussion. [See Holmes v. Mo. Pac. R. Co., 190 Mo. 98, 88 S. W. 623.] We see nothing in the cause suggesting such contributory negligence on the part of the plaintiff father as would preclude his right of recovery as a matter of law. In all its aspects, the case is one for the jury. The judgment should be reversed and the cause remanded. It is so ordered.

Reynolds, P. J., and Caulfield, J., concur.