Armstrong v. Yakima Hotel Co.

• Decision Date: 22 September 1913
• Citation: 135 P. 233,75 Wash. 477
• Parties: ARMSTRONG v. YAKIMA HOTEL CO.
• Court: Washington Supreme Court

135 P. 233

75 Wash. 477

ARMSTRONG v. YAKIMA HOTEL CO.

Supreme Court of Washington

September 22, 1913

Department 2. Appeal from Superior Court, Yakima County; E. B. Preble Judge.

Action by Myrtle Armstrong against the Yakima Hotel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Luhman & Clark and Englehart & Rigg, all of North Yakima, for appellant.

Snively & Bounds, of North Yakima, for respondent.

ELLIS J.

The plaintiff brought this action to recover damages for injuries received by reason of a fall down a stairway in the defendant's hotel. She testified that about noon on March 16, 1911, she went to the hotel to purchase her lunch, after finishing which she ascended the stairs and visited the toilet maintained on the second floor for the use of female guests, and that in descending the stairway she caught the heel of her shoe on the brass facing on the second step from the top and fell to the lobby below, suffering the injuries for which she sues. One Ralph M. Dunbar and his wife, who were at the time guests of the hotel, testified by deposition that a short time after the accident they both examined the stairway, and especially the second step from the top, and found that the brass facing on that step was loose and protruded outward and upward in such a way as to cause danger of catching one's heel thereon. Mrs. Dunbar further testified that on the morning of the same day of the accident she herself had caught her heel upon this same brass facing and had only been prevented from falling by holding to the balustrade of the stairway. As tending to show the length of time during which this condition had existed and notice to the defendant company, another woman testified that on the evening of January 28, 1911, while descending the stairs, she caught her heel on the brass facing of the second step from the top, fell and rolled down stairs, suffering slight injuries; that immediately after the fall she had a conversation with the manager of the hotel in which he remarked that if she wore shoes with French heels he would not be liable, otherwise he would. This conversation was denied by the manager. This woman also testified that immediately after her fall she examined the step and found that the brass facing thereon was loose and projected outward and upward. The manager testified that this last witness was at the time of her fall, intoxicated, which she positively denied. The manager and several persons who were then employés of the defendant company testified that they made examination of the steps of the stairway shortly after the accident to the plaintiff and found them all in perfect condition. At appropriate times in the progress of the trial the defendant moved for a nonsuit and for a directed verdict. Both motions were overruled. The jury returned a verdict in favor of the plaintiff for $9,869. The court, on motion for a new trial, reduced the verdict to $7,000 on condition that the plaintiff accept that amount, ordering that otherwise a new trial be granted. Plaintiff accepted the reduction, judgment was entered accordingly, and the defendant appealed.

There are many assignments of alleged error but they may be discussed under the following heads: (1) Alleged insufficiency of the evidence as against the motion for nonsuit. (2) Alleged insufficiency of all of the evidence to sustain the verdict. (3) Alleged improper admission of evidence. (4) Alleged misconduct of respondent's counsel in interrogating the jurors on their voir dire. (5) The refusal to grant a new trial. (6) The claim that the verdict was excessive.

1. The motion for a nonsuit was, of course, properly denied, if, at the close of the respondent's case in chief, there was any competent evidence or inferences reasonably to be drawn from competent evidence that she was a guest of the hotel at the time in question; that the injury was sustained in the manner claimed; that the brass facing of the step in question was loose and protruding; and that such a condition had existed for a sufficient length of time to charge the appellant with notice of it.

We find no merit in the claim that she was not a guest and that she used the toilet without warrant. It is undisputed that she went to the hotel for her luncheon, for which she paid. She was there on an implied invitation of the appellant. For the time being she was a guest and entitled to a reasonable use of the conveniences furnished for the use of guests. Her admission that she ascended the stairs not only to use the toilet but also to secure money from her person with which to pay for her meal was immaterial. The testimony of the respondent and of two other guests, as to the condition of the step at the time of the accident, and that of another guest indicating that it was in the same condition 47 days before, was sufficient to warrant the denial of a nonsuit.

2. At the close of all the evidence the situation was practically unchanged, except that a conflict had been raised by contradicting testimony as to the condition of the step at the time of the accident to the respondent and at the time of the other woman's fall, and except that evidence had then been introduced in support of the defense of contributory negligence that the respondent wore a narrow skirt and high-heeled shoes. On the other hand, there was evidence that the skirt was not unusually narrow, and that the shoes were ordinary walking shoes. Both the skirt and the shoes were in evidence. On such a conflict it is elementary that the questions of negligence and contributory negligence were both for the jury. The motion for judgment notwithstanding the verdict was properly overruled.

3. It is contended that certain depositions were improperly admitted because the questions were not rewritten by the notary before whom the depositions were taken; the answers being written by him beneath the original interrogatories. This was a substantial compliance with the statute. No authority is cited to the contrary. Rem. & Bal. Code, § 1242.

It is also claimed that the evidence that the facing of the step in question was loose and protruding and caused another woman to fall some 47 days prior to the accident was improperly admitted because too remote in time. There was no evidence...