Benedict v. Eppley Hotel Co.

Decision Date25 June 1954
Docket NumberNo. 33552,33552
Citation159 Neb. 23,65 N.W.2d 224
CourtNebraska Supreme Court

Syllabus by the Court.

1. The proprietor of a hotel is not an insurer against accident to persons invited upon the hotel premises, but he must exercise reasonable care to keep the premises and facilities reasonably safe for the purposes for which they are to be used.

2. The doctrine of res ipsa loquitur means that the facts of the occurrence permit, but do not compel, an inference of negligence. It is a rule of evidence and not a rule of substantive law. It is a qualification of the general rule that negligence is not to be presumed but must be proved. The doctrine takes the place of evidence as affecting the burden of proceeding with the case.

3. An invitee upon hotel premises injured by the failure of a chair furnished by the hotel for his use and occupied by him at the time of the injury who does not know the cause of the accident is entitled to the benefit of the doctrine of res ipsa loquitur in an action by him to recover damages because of injury inflicted by the accident.

4. A proprietor of a hotel is not deprived of the control and management of a chair owned by it by the fact that an invitee on the hotel premises occupied it for some time before and at the time of its collapse so as to deny the invitee the benefit of the doctrine of res ipsa loquitur in an action by him for damages on account of injuries inflicted by the accident.

5. If facts are shown to which the doctrine of res ipsa loquitur has application an inference of negligence arises, that is, the thing speaks for itself and a question is presented for the jury as to liability.

6. A latent defect is one that exists in such manner that discovery of it is impossible by reasonable inspection and care.

7. It is the duty of the trial court, without request, to instruct the jury on each issue presented by the pleadings and supported by evidence.

8. It is the duty of the trial court to instruct the jury fully and fairly as to items of damage it should consider in arriving at its verdict and as to the proper basis upon which damage should be assessed for each item.

Mecham, Stoehr, Mecham & Hills, Omaha, for appellant.

Matthews, Kelley, Fitzgerald & Delehant, Omaha, for appellee.


BOSLAUGH, Justice.

This is an action for damages claimed to have been sustained by appellee because of injuries inflicted upon her as a result of negligence of appellant. Appellee had a verdict and judgment. A motion of appellant for a directed verdict at the close of all the evidence was denied. A motion for judgment notwithstanding the verdict and a motion for a new trial were overruled.

Appellee pleaded as a cause of action that: Appellant, a corporation, maintains and operates hotels in Omaha. One of them is the Rome Hotel. Appellant on or about March 5, 1949, operated a bingo game as a part of its activities and as an attraction to induce persons of the city and surrounding territory to the Rome Hotel. The facilities for the game, including the place where it was conducted, the tables, and the chairs, were provided by appellant. The appellee at the invitation of appellant attended the game, procured from an attendant in charge a chair, and occupied it at one of the bingo tables. She sat on the chair for a short time when it collapsed and hurled her to the floor with force and violence, and she sustained numerous and severe permanent injuries. The chair was defective in a respect unknown to appellee. The defect therein caused it to collapse and injure her. It was a folding chair constructed so that when it was not in use the seat could be folded up against the front of the back of the chair. If it was not defective or out of repair it could not and would not collapse or cause injury to a person sitting on it. The appellee invoked the doctrine of res ipsa loquitur. The defenses interposed by appellant were a denial and a plea of contributory negligence of appellee.

The Military Order of the Cooties, a branch of the Veterans of Foreign Wars, as one of its activities to raise money, had an arrangement with the Rome Hotel to put on a bingo game therein. The ballroom was usually used but on occasions more than one room was required. An amount was paid to appellant each time the accommodations were used for this purpose. Appellant had supervision of the space used for the game. It furnished the accommodations where the game was played, the tables, the chairs, and all other facilities, but the supplies required in the conduct of the game were not furnished by it. The employees of the hotel set up the tables and arranged the chairs for use of the participants and after the game they dismantled the tables and removed the chairs. A Mr. Pennington and his helpers, acting for the Military Order of the Cooties, directed the playing of the game. Appellant had a bar adjoining the bingo room or rooms and its employees served beer, mixed drinks, and other beverages as they were desired by persons attending the game. The hotel had a lunch stand and made available to anyone present coffee and sandwiches. These concession rights were reserved exclusively to appellant and it served the public for profit.

The game was scheduled to start at 8 p. m. The mother of appellee, accompanied by a friend, was at the hotel when the game started the evening of March 5, 1949. Appellee arrived there about 9:30 p. m. She paid the charge required to become one of the players, secured a chair from an attendant, took it some distance to one of the bingo tables, and placed it at the table opposite where her mother was seated, sat on the chair, and entered the game. She continued to occupy the chair for about 20 or 30 minutes when, without warning, it collapsed and caused her to suddenly descend onto the floor. She observed nothing unusual about the chair when it was furnished to her or while she was taking it to the table and experienced nothing unusual while she was occupying it before it gave way. She used it for no purpose except to sit on it. It was a folding chair with braces, screws, and bolts to maintain it in proper condition for its intended use. After the accident it was discovered the screws and bolts on one side of the chair were missing from it.

It was the duty of the lobby porter of the hotel to inspect its chairs for defects. He did not testify and there is no proof that he performed this duty. A porter assigned to the housekeeping department was a witness for appellant. He said he sometimes helped other porters set up tables and arrange chairs for banquets and parties. He examined each chair he handled for any defects in it and if he found any he took the defective chair to the carpenter shop of the hotel. He gave no date when he made an inspection of chairs, did not claim that he handled any of the chairs provided and arranged for the bingo game the night appellee was injured, or that he had seen the chair she used that was not in normal condition that night. The other porters who handled the chairs were not produced at the trial. The Military Order of the Cooties had nothing to do with the maintenance, inspection, or repair of the chairs made available by the hotel for the use of persons attending the bingo game. The chair sometime after it had collapsed was taken and delivered by Mr. Pennington to the man who was in charge of the Rome Hotel that night. It was not produced at the trial and no evidence concerning this specific chair or its condition was offered by appellant at the trial.

It is correctly asserted by appellant that an innkeeper is not an insurer against accident and injury to invited persons upon the premises, but he must exercise reasonable care to keep the premises and facilities of the inn reasonably safe for the purposes for which they are to be used by guests and other invitees. Liability arises from failure to exercise reasonable care and prudence in that regard. The rule is stated in Pierce v. Burlington Transportation Co., 139 Neb. 423, 297 N.W. 656, 658; 'The premises upon which the plaintiff was invited to enter and where the accident happened was a hotel which must be kept reasonably safe for all persons invited to use its facilities. The proprietor of a hotel is not an insurer against accidents to guests or other invitees. Liability arises only from a failure to exercise reasonable care and prudence in keeping the premises safe.' In McMahon v. Regis Hotel Co., 147 Neb. 751, 25 N.W.2d 24, 25, the court said: 'The law imposes a duty on an innkeeper to furnish safe premises to his guests, and to provide the customary articles of furniture, which may be used by them in the ordinary and reasonable way, without danger. The duties and liabilities of an innkeeper are not those of an insurer, and extend only to the exercise of reasonable care * * *.' See, also, Annotation, 18 A.L.R.2d 973.

Appellee did not allege or attempt to prove specific negligence. She says a chair does not ordinarily collapse when it is sat on by a person if the one responsible for its maintenance and who has its management uses reasonable care to keep it reasonably safe for the purpose of its intended use. She relies upon res ipsa loquitur. This doctrine of the law is that if a thing which causes injury is shown to be under the control and management of a defendant and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendant that the accident arose from want of proper care. That is, the thing shown speaks of the negligence of the defendant. The facts of the occurrence permit, but do not compel, an inference of negligence. It is said in Miratsky v. Beseda, 139 Neb. 229, 297 N.W. 94: 'Where a structure, the collapse of...

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