| Mo. | Mar 17, 1904
Appellant is the owner of two buildings or tenement houses in the city of St. Louis, one fronting north on Easton avenue, the other immediately back of it fronting south on Evans avenue; each of these buildings had been partitioned off and divided up so as to make several flats or sets of rooms for the occupancy of families desiring to rent same for dwelling purposes. Respondent, at the time of the institution of this suit and for a long time prior thereto, had been a tenant of appellant, occupying one of the flats or sets of rooms in plaintiff’s building fronting on Evans avenue. Between the rear of appellant’s two main buildings there had been left an open court or yard about twenty-five feet wide for the common use of all tenants who may occupy apartments or flats in appellant’s said building, which said court or yard had been entirely paved or covered with brick, except several small spaces of about twenty inches wide by three feet long, at the rear of said building, that had been left for use as coal holes, through which coal, wood and such like material might be thrown into the basement of the buildings by the tenants using the same. To protect
In respondent’s petition it is stated, and so the facts were shown to be, that all of appellant’s fiats or sets of rooms in both buildings, had openings or ways out into this common yard or court from the rear, and that the building fronting on Easton avenue had been so constructed as to leave an arched passageway about three feet wide, through its center, to afford a way to and from Easton avenue to said common court or yard for appellant’s tenants occupying his two said buildings, and for those desiring to go to Easton avenue from the rear of their premises through said common court or yard.
After having recited the existence of the above facts, the respondent in his petition, says:
“That on the 3rd day of November, 1898, and for two or three weeks prior to said date, there was in the rear of said store, numbered 3622 Easton avenue, a deep and dangerous hole or opening, extending out into s-aid court or yard two and one-half feet, and was about five feet deep and three feet long, and extended to within 18 inches of said passageway, hereinbefore mentioned, leading out to Easton avenue from said paved court or yard. That said hole or opening was at said date, and for about three weeks prior thereto had been, unprotected by slats or cover. That on said 3rd day of November, 1898, and for several months prior thereto, the plaintiff was a tenant of the defendant, occupying the said flat, 3617A Evans avenue, and when going to Easton avenue from the rear of said flat the plaintiff was in the habit of passing' across said paved court or yard and through said arched passageway to said Easton avenue. That the condition of said hole or opening, at and near the said passageway, was known to the defendant prior to the said 3rd day of Novem
At the close of the testimony, the case was given to the jury under instructions, among which appeared the following, in behalf of defendant, numbered 2:
“The court instructs the jury that although you may believe from the evidence that plaintiff was a tenant of the defendant, and was injured by falling into the coal hole or opening described in plaintiff’s petition, and situated in the common yard belonging to defendant, and used by plaintiff in connection with other tenants, by reason of.the facts that the slats covering said opening had been removed by someone unknown to plaintiff, yet if you further believe that said slats were removed without the direction or knowledge of defendant or anyone acting for him, and that defendant had not been notified of the fact that said slats had been removed, and had no knowledge of the dangerous condition of said opening, then your verdict should be for the defendant. ’ ’
The result was a verdict and judgment for defendant. Thereafter plaintiff filed his motion for a new trial, and this motion the court sustained, giving as its
This instruction was not only out of harmony with the one given in behalf of plaintiff, but it confined the question of defendant’s liability to a compass too limited and circumscribed, and imposed upon the plaintiff a burden which he was not bound to sustain. Since the trial judge who heard the testimony, saw the jury, and listened to the arguments made by defendant’s counsel to the jury upon the instruction as given, has determined that this instruction was prejudicial to the rights of the plaintiff and has granted to him a new trial on account thereof, we would not be warranted in declaring that court in error for so doing, merely because of the fact, as suggested by appellant, that the jury had been properly informed by an instruction given in behalf of plaintiff of all the conditions under which the defendant would be liable to plaintiff for the injury complained of.
The consideration of this instruction, at this time, is quite different from what it would be had the case come here on plaintiff’s appeal from the court’s refusal to grant a new trial, on account of said instruction having been given. In the latter case, the questions for this court would be, first, was the instruction as given, an accurate declaration of the law applicable to the facts of the case, and, second, if not, was its defect such, as in our opinion, did operate to the prejudice of plaintiff’s claim, by having induced or forced a verdict which otherwise might properly have been made in plaintiff’s favor? and this we would determine from an examination of all the facts and circumstances in the case, and reverse or affirm the trial court in its action, as we might think plaintiff had or had not been aggrieved by the giving of said erroneous instruction. Under such circumstances, every error shown in an in
This instruction had the effect of requiring the jury to find that defendant had actual knowledge of the defective and dangerous condition of this uncovered hole into which plaintiff fell and was injured, before he could be held liable, and imposed upon the plaintiff a burden which the law does not require, and which the jury might well have said he did not meet and sustain, since no witness called by plaintiff testified directly that the defendant in person was ever seen on or about the premises, or that personally he knew anything of his buildings or their conditions or surroundings. Plaintiff’s testimony went only to the extent of showing that the top or covering for this coal hole into which plaintiff fell had been removed, or had become broken and torn up, and remained in that condition for as long as six or seven weeks or more, prior to the time of plaintiff’s injury, and that the attention of defendant’s collecting agent, who was about the buildings and in this court or back yard every day or so, had been called to the fact and he was requested to have it repaired, and further that defendant’s son, who claimed to be the agent of his father in looking after the premises, was seen