Burchmore v. Antlers Hotel Co.

• Decision Date: 03 March 1913
• Citation: 54 Colo. 314,130 P. 846
• Parties: BURCHMORE v. ANTLERS HOTEL CO.
• Court: Colorado Supreme Court

130 P. 846

54 Colo. 314

BURCHMORE v. ANTLERS HOTEL CO.

Supreme Court of Colorado

March 3, 1913

Error to District Court, El Paso County; W. S. Morris, judge.

Action by Adelaide E. Burchmore against the Antlers Hotel Company, a corporation. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Joseph N. Baxter, of Denver, Vanatta & Dolph, of Colorado Springs (Robert E. Harding, of Colorado Springs, of counse), for plaintiff in error.

Wm. E Hutton, of Denver (Bruce B. McCay, of Denver, of counsel) for defendant in error.

SCOTT J.

This is an action upon the part of the plaintiff in error, plaintiff below, to recover damage for injuries alleged to have been received while a guest of the Antlers Hotel, at Colorado Springs, conducted and operated by the defendant corporation. The plaintiff was a resident of the city of Boston, Mass and was one of a party of about 175 making a tour across the country. The party, including the plaintiff, stopped at the city of Colorado Springs, and became guests of the said hotel.

Presumably because of so large a party to be cared for at one time, the hotel management provided one of its dining rooms partially with certain camp chairs. The plaintiff, on the evening of the second day at the hotel, entered the dining room in company with two friends, husband and wife, and they were being seated at the same table. The plaintiff, while being seated, and while assisted by a waiter, sat down on the chair provided for her, and it immediately collapsed, precipitating the plaintiff to the floor, causing the injuries alleged to have been sustained. The particular chair in question is described as a folding camp chair, with perforated wood back and seat. The other chairs were as hereinafter stated, and at least a part of them were camp chairs, and presumably of the same description.

The allegation in the complaint as to negligence is that the defendant, 'neglectful of its duty carelessly, negligently, knowingly, recklessly, wantonly, and maliciously invited the plaintiff to the use of a chair which was unsafe, and known to be so by the defendant company.' The answer is a general denial, and also charged contributory negligence. As to what was the character or nature of the defect in the chair used is not clear; in fact, this appears to be purely speculative. The cause was tried to a jury, and a verdict returned for the defendant.

The assignments of error are: (a) The refusal of the court to admit certain testimony; (b) the refusal to submit to the jury an instruction tendered by the plaintiff; and (c) the giving of other instructions by the court, over the objections of defendant.

The testimony refused was as to the condition of other chairs in the dining room prior to the accident, and as to other accidents occurring in the dining room prior thereto. No testimony was offered as to the particular defect in the chair used by the plaintiff, and the same seems to have disappeared, and could not be produced at the trial.

Plaintiff cites many cases wherein testimony is admitted as to the prior condition of the particular object or thing causing the accident, and also of other and prior accidents occasioned thereby; but in no case cited does it appear that such testimony was admitted as to the condition of similar objects or things in the same vicinity, or as to previous accidents occasioned by similar objects or things, not related to the object which was the direct cause of the accident.

The testimony discloses that the chairs in the dining room were not all of the same make or design, or of similar defective condition, but, on the contrary, that some were solid framed, some cane bottomed, and others of the type of the chair in question. Hence it cannot be justly reasoned that a defect in one should give notice to the defendant of a dangerous condition in the particular chair in question. It is true that in cases where the specific defect is of such a character that the general condition, as in case of a sidewalk, would naturally draw attention to the precise defect complained of, that such general condition is sometimes admitted. Lyon v. Grand Rapids, 121 Wis. 609, 99 N.W. 311.

But the condition of one particular chair in a large dining room could not be expected to give notice of the condition of any other one chair, though, if such defective condition was known to be general with the chairs used, it might be permissible as tending to show a prudent duty upon the part of the landlord to examine all of them. The rule in this respect, as stated by Wigmore on Evidence, is 'that the prior injury or defect should be one which, if known, would naturally warn the person charged of the existence of the defect in question. It should be so closely associated with the one in question that the discovery of the one would naturally lead to the discovery of the latter, or would warn of its existence.'

It is said in R. G. S. Ry. Co. v. Campbell, 44 Colo. 1, 96 P. 986: 'In an action for negligence the general rule is that evidence of other independent and disconnected acts of negligence, which could not have contributed to the plaintiff's injuries, is not admissible to establish the negligence charged.'

The testimony complained of was properly excluded.

That part of the instruction complained of as having...