Blanks v. Southland Hotel

• Decision Date: 29 March 1950
• Docket Number: No. A-2512,A-2512
• Citation: 149 Tex. 139,229 S.W.2d 357
• Parties: BLANKS v. SOUTHLAND HOTEL, Inc.
• Court: Texas Supreme Court

Page 357

229 S.W.2d 357

149 Tex. 139

BLANKS v. SOUTHLAND HOTEL, Inc.

No. A-2512.

Supreme Court of Texas.

March 29, 1950.

Rehearing Denied May 17, 1950.

Caldwell, Baker & Jordan and Ralph K. Gillen, Dallas, for petitioner.

R. T. Bailey, Dallas, for respondent.

TAYLOR, Justice.

This suit is for damages for personal injuries in which C. L. Blanks, plaintiff, petitioner here, was awarded judgment in a jury trial. It was reversed and the Court of Civil Appeals rendered judgment for defendant, Southland Hotel Incorporated, respondent here. Writ of error was granted on petitioner's first point to the effect that the Court of Civil Appeals erred in holding that the trial court erroneously refused defendant's motion for an instructed verdict. 226 S.W.2d 162.

The gist of the case is embodied in the assignments and counter assignments dealing with the questions of whether defendant Hotel was primarily negligent and whether plaintiff Blanks was guilty of contributory negligence. We adhere finally to the tentative opinion indicated in granting the writ, that there is substantial probative evidence upon which the jury's findings of primary negligence on the part of defendant and no contributory negligence on the part of plaintiff, are predicated, respectively.

Plaintiff alleged in substance that the defendant Hotel has nine floors, extending from the ground floor to the penthouse floor; that when injured he was tenanted in a room on the ninth floor; that elevator service is provided for guests up to the eighth floor, and that the only means of reaching the ninth is by means of a stairway extending from the eighth floor through the stair well to a hall on the ninth; that the stairway is divided into two flights, or sections, the flight adjoining the eighth floor being twelve steps in length and the flight adjoining the ninth being twenty; that the segment of the stairway and the stair well referred to were poorly and insufficiently lighted, the only light being natural light which entered from the ninth floor in such a way that very little reflected upon the stairway, especially upon the top of the flight from the eighth floor where the stairs were dark, and the steps and handrail where he slipped and fell were dim; that the inner side (left descending) of the two flights had a handrail and its height made it necessary for a person to bend forward to reach to hold to it; that the steps were of hard-surfaced material, slick and smooth, and were not covered with carpet or matting, or corrugated; that it was the Hotel's duty under the innkeeper and tenant relationship to exercise ordinary care to so maintain this sole passageway between the two floors that persons on the ninth floor including himself, could go up and down with reasonable safety.

Plaintiff alleges also that there was not as much light on the stairs on the occasion of his injury as on other occasions when he had made use of the passageway; and defendant knew, or in the exercise of ordinary care should have known, that the existing dangerous conditions, dark stairs, dimly visible handrail and slippery steps, were calculated to cause a person descending as he was when injured to miss his steps or lose his balance and fall.

Exceptions were leveled by the Hotel at plaintiff's allegations of primary negligence on the ground of vagueness and failure to show violation of any duty it owed plaintiff, or to present an ultimate issue of fact; and because no duty, as a matter of law, rested on it to keep artificial lights on the ninth floor burning so as to reflect on the stairway. The Hotel denied in toto plaintiff's allegations and pleaded specially that the arrangement was open and obvious to plaintiff who had made use of it on many occasions, and as a matter of law assumed the risks or voluntarily submitted himself to them. It pleaded specially that for many years the steps referred to had been in substantially the same condition as at the time of plaintiff's alleged fall; that he was fully aware of the conditions, or should have been by the use of ordinary care; and that during the period, prior to plaintiff's use of the stairs, thousands of guests, employees and other persons had used them without injury.

The particulars in which defendant Hotel alleges plaintiff was guilty of contributory negligence are that (a) he failed to keep a proper lookout, (b) failed to hold onto the handrail, (c) failed to watch where he was stepping and (d) failed to request any one to assist him down the stairway. Unavoidable accident was also pleaded.

The jury found in response to the primary negligence special issues that the Hotel failed to provide the two sections of the stairway under discussion with an adequate system of lighting, failed to provide the stair treads with corrugation or matting, that the handrail was so low a person had to stoop to grasp it, that the risers were of variable heights, that there was a failure to provide any artificial lights at all in the staircase in question, and that the steps were worn so that they were smooth and slippery; further, that all of the foregoing failures, respectively, constituted negligence on the part of the Hotel, except those as to the height of the handrail and the variableness of the heights of the risers; also that all of the failures, except the two just referred to, constituted proximate causes, respectively, of plaintiff's injuries.

The jury found in answer to the special issues on contributory negligence that plaintiff did not fail to keep a proper lookout, did not fail to watch where he was stepping, was not under the influence of intoxicating liquor; and that his fall was not an unavoidable accident.

No question is raised but that the injuries sustained by plaintiff were of a serious nature, and permanent, or that the amount of the recovery awarded was excessive.

It would unduly prolong this opinion to set out at length the testimony. Suffice it to say that there is substantial probative evidence upon which the jury predicated its findings set out above in the matter of the Hotel's primary negligence, to wit, the evidence bearing on the lighting arrangement, showing an absence of artificial lighting to illuminate the entire stair well between the two floors, absence from the steps of matting, carpeting or corrugation, the worn and slippery condition of the steps, slanting toward the front edge; and to the effect they were made more slippery by the wearing down of the treads. Briefly, the testimony was such that reasonable minds could reach opposite conclusions as to whether defendant was primarily negligent. The special issues submitted on this phase of the case were therefore necessarily jury questions and the court did not err in accepting the above findings made in response thereto as determinative that defendant was negligent.

Decision of whether plaintiff was contributorily negligent is attended with more difficulty than the primary negligence phase of the case. This is true because of some degree of familiarity with the passageway and its condition acquired by him by using it going up and down in the daytime while in the city for some fifty per cent of his three-weeks tenancy. The testimony is such that reasonable...