Ashton v. Higgins
| Decision Date | 20 May 1953 |
| Docket Number | No. 9336,9336 |
| Citation | 80 R.I. 350,96 A.2d 632 |
| Parties | ASHTON v. HIGGINS. Ex. |
| Court | Rhode Island Supreme Court |
Eugene J. Sullivan, Jr., Providence, for plaintiff.
William A. Gunning, Providence, for defendant.
This action of trespass on the case for negligence was tried to a jury in the superior court and resulted in a verdict for the defendant. The case is here on plaintiff's bill of exceptions to the denial of her motion for a new trial, to rulings on the admission of evidence, and to certain supplementary instructions which the trial justice gave to the jury at their request after they had begun their deliberations. We shall consider those exceptions in that order.
The plaintiff's cause of action arose out of a fall which she sustained in defendant's cafe in Providence on November 5, 1949 which resulted in personal injuries. The declaration contains five counts, the first of which alleges substantially that it was defendant's duty to maintain his premises in a reasonably safe condition so that persons lawfully using the same in the exercise of due care would not be injured; but that unmindful of such duty he permitted one of the passageways to the ladies' rest room to be in an unsafe condition in that a metal strip was improperly affixed to the face of the step at an inside doorway leading to the toilet room by reason of which plaintiff, while walking along the floor at such doorway in the exercise of due care, caught the toe of her shoe at a place on the floor where said metal strip was improperly affixed and 'tripped, stumbled and lost her footing, fell, and was violently thrown to the floor.'
In the second count it is alleged that defendant permitted the entrance from the powder room to the toilet room to be in an unsafe condition in that the same was so constructed that the step leading to and from said toilet room was not reasonably apparent to one walking out of such room and that as a result thereof plaintiff, while in the exercise of due care, fell down said step with great force and violence.
The third count alleges that it was defendant's duty to have the step from the powder room to the toilet room of proper design and construction so that one lawfully using the same in the exercise of due care would not be injured, but that unmindful of said duty he permitted such step to be in an unsafe condition in that it was so improperly designed and constructed as not to be apparent to plaintiff, by reason whereof she fell and sustained serious and severe injuries.
It is alleged in the fourth count that it was the duty of the defendant to warn persons of such step who did not know of its location. And in the fifth count it was further alleged that she was not informed of the location of the step. She alleged that as a result of defendant's failure to warn her of the location of the step, she fell down said step with great force and violence and was thereby severely injured.
In support of the above counts plaintiff testified substantially as follows. On November 5, 1949 about 9:30 p. m. she and two friends, Mr. and Mrs. Edward J. Bracey, went to plaintiff's cafe. Upon their arrival Mr. Bracey took a seat at a booth while plaintiff and Mrs. Bracey retired to the ladies' room which was divided into a powder room and a toilet room. Entering from the main dining room they came to the powder room first and next, beyond a doorway leading therefrom, to the toilet room. The latter room was elevated slightly above the powder room so that at the doorway there was a step variously described by plaintiff and other witnesses as one-and-one-half or two inches high.
The plaintiff testified that she preceded Mrs. Bracey into the powder room and thence through that doorway into the toilet room. She further testified that she left the latter room before Mrs. Bracey; that on her way out at the doorway she stubbed the toe of her right shoe on a piece of metal stripping which 'was sticking up a little higher' than the floor; and that as she put her left foot out she fell forward on her hands and knees. Mrs. Bracey testified that she did not see plaintiff fall but her attention was attracted by 'a yell and a thud' and that she left the toilet room and saw plaintiff on the floor of the powder room on her hands and knees.
The workman who had installed the tile floor and metal stripping a few days before the accident testified for defendant that the metal strip or 'bull nosing,' as it was called in the linoleum trade, had a lip which was screwed into the toilet room floor after the strip was affixed to the edge of the step. He further testified that the asphalt tile of the floor was then laid over the lip right up to the edge of the nosing so that it was perfectly level with such edge. In cross-examination he stated that he was sure the floor where the tile was laid near the metal strip was level throughout and not uneven in any respect. He further testified that he had finished the job the last part of October 1949.
Howard I. Harris, who was bartender and maintenance man at the cafe at the time of the accident but not at the time of the trial, was called by and testified for plaintiff. He stated that he is familiar with the layout of the cafe rooms and that there is a step about two inches high from the powder room to the toilet room; that there is a metal strip on the face of this step; that the asphalt tile of the toilet floor butts against the edge of the strip; and that he saw the strip being affixed to the step. He further testified that on the Sunday following the accident defendant called him and told him to 'look around, to see if I could see what would cause an accident'; that he looked at this step and could not see anything wrong and then he ran his hand over the step, as the defendant had told him plaintiff 'didn't trip going in,' but 'tripped coming out of the toilet room'; that he felt the top edge of the strip; and that it 'was sticking up' one sixteenth or one eighth of an inch, but he could not be sure.
On cross-examination he admitted that although he was examining the strip on his hands and knees he did not see anything wrong with it until he ran his hand over it. He was then asked:
The plaintiff called an architect, Edwin E. Cull, to testify as to the design and construction of the step. He stated that sometime in December 1950 at the request of plaintiff's counsel he examined defendant's premises, particularly the location of the accident; that he measured the step and found it to be one-and-half inches high; that the edge of the metal strip was one sixteenth of an inch above the tile; that such a step was not proper or 'customary' construction because it is not 'expected' to be found in such a place as defendant's cafe, but that it should be not less than five inches; that a step of only one-and-one-half inches in such a place is dangerous because in his opinion people are not accustomed to such a low step; and that the safer way would be to construct a ramp in this location.
In our opinion the above is a substantial summary of all the evidence of any importance bearing on the question whether defendant was guilty of negligence in not providing a reasonably safe place for invitees lawfully on his premises, and on the further question as to what was the cause of plaintiff's fall. Under her motion for a new trial, plaintiff contended that this evidence clearly preponderated in her favor and therefore the verdict for defendant was contrary to the evidence and should be set aside. The trial justice disagreed with her view and expressly stated in his decision denying her motion that the verdict coincided with the evidence and did substantial justice between the parties; and he further observed that he himself did not feel that defendant was guilty.
From our reading of his decision we do not find that he misconceived the law or overlooked any important evidence in favor of plaintiff, and it does not appear that he failed...
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