Bowling v. Lewis

• Citation: 69 ALR 2d 1100,261 F.2d 311
• Decision Date: 25 November 1958
• Docket Number: No. 7738.,7738.
• Parties: James L. BOWLING, Appellant, v. Maggie K. LEWIS and Lillian Kulchycke, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

69 ALR 2d 1100, 261 F.2d 311 (1958)

James L. BOWLING, Appellant, v. Maggie K. LEWIS and Lillian Kulchycke, Appellees.

No. 7738.

United States Court of Appeals Fourth Circuit.

Argued October 22, 1958.

Decided November 25, 1958.

Irvine F. Belser, Jr., Columbia, S. C. (Belser & Belser, and Clinch Heyward Belser, Columbia, S. C., on brief), for appellant.

H. E. McCaskill, Conway, S. C., and George W. Keels, Florence, S. C., for appellees.

Before SOBELOFF, Chief Judge, and BARKSDALE and BRYAN, District Judges.

BARKSDALE, District Judge.

This diversity action was instituted by appellant, James L. Bowling, against the appellees, Maggie K. Lewis and Lillian Kulchycke, for the recovery of damages for personal injuries which he alleges he sustained as the result of the negligence of appellees. There was a trial with a jury and at the conclusion of plaintiff's evidence the district judge granted defendants' motion for a judgment of involuntary dismissal, and plaintiff has appealed. Taking the evidence, and reasonable inferences to be drawn from it, in the light most favorable to the plaintiff, as we must, Doggett v. Atlantic Holding Corp., 4 Cir., 239 F.2d 156, Scott v. Meek, 230 S.C. 310, 95 S.E. 2d 619, the facts are substantially as follows:

Having previously made a reservation, James L. Bowling, a Greyhound bus driver of Washington, D. C., arrived at defendants' motel on the ocean front at Myrtle Beach, S. C., the afternoon of Sunday, May 15, 1955, intending to spend a week of his vacation there. He was accompanied by his wife and two small children. The room to which he and his family were assigned was located at the righthand corner facing the ocean on the ground floor of one of the two buildings comprising defendants' motel. The car-parking area was to the rear of this building, and the only means of access from the parking area to the ocean-front rooms was a concrete walkway leading around both sides of the building. This walkway was from two to three feet wide, and some two or three feet from the sides of the building. Immediately adjacent to the walkway, on the side toward the building, there was a wall composed of rough, jagged, coral stones piled loosely on top of each other without mortar, which was ten to twelve inches high, approximately ten to twelve inches wide at the bottom, and somewhat pyramidal in shape. It was uneven and irregular, due to the varying sizes of the stones. Between the wall and the side of the building, there was a flower bed. The stone wall was removed by the defendants before the trial. Tuesday evening, after his arrival on Sunday, Bowling and his family left the motel about 7:15 P.M., and drove to the amusement area some distance away. As the Bowlings left the motel, dusk was coming on, electric lights were on in the motel office and one or more of the other motel rooms. Also, the motel advertising sign was lighted up and a lantern-type electric lamp was lighted which provided sufficient illumination to enable anyone to use the walkway around the building without difficulty. After spending some time at the amusement area, the Bowlings returned to the motel about 9:15 P.M., and parked their car in the place assigned to him in the parking area to the rear of the motel. Although the night was cloudy, foggy and very dark, there were no lights whatever in or about the entire motel with the exception of a small yellow bug-repellant light at the front of the building which provided no effective illumination to the rear or sides of the building. All the other lights had been turned off while the Bowlings were at the amusement area. In order to provide light enough for his wife and children to reach their room, Bowling did not extinguish the headlights of his car. These lights did not shine directly on the walkway, but did provide sufficient light for Mrs. Bowling, carrying the smaller child in her arms and leading the older one by the hand, to reach their room safely, proceeding along the concrete walk on the righthand side of the building facing the ocean. After waiting long enough for his wife and children to reach their room, Bowling turned off his headlights, and waited momentarily to give his eyes an opportunity to adjust to the darkness. With eighteen years of experience as a bus driver, he had very good night vision. Although it was then very dark, Bowling thought he could safely find his way along the walkway to his room, as he had used this walkway a number of times since his arrival at the motel on Sunday. He proceeded very cautiously around the right rear corner of the building and along the concrete walkway toward the faint glow of light at the end of the building from the yellow light in front of his room. Just after he had turned the corner and was proceeding along the walkway, his foot struck a stone on or immediately adjacent to the walkway. He turned his ankle and fell to his left into and across the wall of jagged rocks adjacent to the walkway, the fall resulting in the injuries which are the basis of this action. The Bowlings had no flashlight, but a friend, expecting to go fishing with Bowling, arrived before daylight the next morning and he had a flashlight. Using it, he and Bowling found a stone, from nine to ten inches in diameter, lying in the walkway immediately adjacent to the stone wall where Bowling had stumbled and fallen. Approximately the length of his body farther forward, they found two or three additional stones lying in the walkway. When Bowling reported the accident later in the morning to Mr. Lewis, husband of the appellee Lewis and manager of the motel, Mr. Lewis replaced the stones which had fallen out of the wall and stated that "he did not understand why this year he had had so much trouble with the rocks falling off and that evidently the rocks had fallen off into the sidewalk and it had never happened before, * * * but this year, several times, they had." That evening, appellee, Mrs. Lewis, said that she had not kept the lights burning because the regular summer season had not yet started and it was too expensive to keep the lights on with only one tenant in the building.

In explaining to the jury his reasons for sustaining defendants' motion for an involuntary dismissal, the trial judge stated his conclusion that plaintiff's evidence was insufficient to sustain the charge of negligence, and moreover, the evidence did establish that plaintiff was guilty of contributory negligence as a matter of law. Hence, there are two questions presented to us on this appeal:

(1) Was plaintiff\'s evidence sufficient to go to the jury on the question of negligence; and

(2) Did the evidence show that plaintiff was guilty of contributory negligence as a matter of law?

We are of the opinion that the first question must be answered in the affirmative, and the second question in the negative.

Considering first the question of defendants' negligence, the general rule seems to be that innkeepers, owe to their guests the duty of exercising ordinary and reasonable care for their safety.

"The law imposes a duty on an innkeeper or similar proprietor to furnish safe premises to his patrons and to provide articles of furniture which may be used by them in the ordinary and reasonable way without danger. Generally, however, his duties and liabilities in this respect are not those of an insurer, and extend only to the exercise of reasonable care; which must be

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