Burnison v. Sounders

• Decision Date: 16 February 1931
• Docket Number: No. 17090.,17090.
• Citation: 35 S.W.2d 619
• Parties: HATTIE B. BURNISON, RESPONDENT, v. HARLEY H. SOUDERS ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

35 S.W.2d 619

HATTIE B. BURNISON, RESPONDENT, v. HARLEY H. SOUDERS ET AL., APPELLANTS.

No. 17090.

Kansas City Court of Appeals. Missouri.

February 16, 1931.

Appeal from Circuit Court of Jackson County. — Hon. Clarence A. Burney, Judge.

AFFIRMED.

Pierson P. Carpenter, Burns & White for respondents.

Sparrow & Patterson, Gardner Smith and Edward J. Tangney for appellants.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $2500 and defendants have appealed.

The facts show that plaintiff was injured on August 14, 1927, by falling down a stairway in a hotel, where she was living as a guest, located in Kansas City. At the time in question, and at all of the times hereinafter mentioned, defendants were lessees of the hotel and were in the operation of the same. A son of one of the defendants was in charge of the hotel as manager thereof.

Plaintiff became a guest of the hotel about nine months prior to the receipt of her injury. The hotel contained sixty-six rooms and had on an average of about seventy-five guests. Plaintiff's room was located upon the second floor of the hotel about sixteen or seventeen feet northwest of the top of the stairway in question. There was a small lobby at the top of the steps which had two large doors with glass panels in them opening upon a front porch. The stairway well was square in shape and in going down the stairs were winding. The first five steps went down toward the south, the stairs then turned toward the west where the east and south wall of the stairway well came together at right angles. The turn consisted of four steps. There was then seven steps going down toward the west when the stairs curved toward the north. There were four steps in this second curve. Thereafter the stairway straightened out with four more steps going toward the north into the lobby on the first floor. There was a number of windows in the first floor lobby.

The steps were made of black walnut lumber. They had a banister on one side and ran to the wall on the other. The risers of the steps were seven and one-eighth inches. The stairway proper was from three to four feet in width. The sixth step from the top, being the one upon which plaintiff fell and the first step of the first turn in the stairway going down, was fifty-three and three-fourths inches in length or longer than the preceding steps. On account of this step constituting the first one in the turn the step toward the banister or the inside of the stairway was narrower than it was where it joined the wall on the outside. The narrower end was seven and one-eighth inches in width and the outer end, or the one next to the wall, twenty-three inches in width. On account of this difference in the width of the step in question there was a triangular board placed back of the main board of the step with its greatest width next to the wall, and running toward the banister the board ended in a point. This board was narrower and smaller than the other board in the step. The evidence shows that the front board was from a fourth to a half inch higher than the rear board.

There was a carpet twenty-six and one-half inches in width running down the center of the steps for their entire distance. Upon each step was placed a rubber mat nine inches wide from front to back. However, the mat lacked three inches of covering the carpet on the left hand or outer side of the stairway in descending. The mat and carpet were fastened on each step in front and rear but not upon the sides. Plaintiff testified that on account of the sides of the carpet and mat being loose the edge of the carpet toward the wall upon the sixth step did not lay down flat but extended above the step a "half to three-quarters inches, possibly an inch."

The accident happened about 5:30 in the evening of a clear day. Plaintiff and a Mr. Young were intending to leave the hotel to go to a theater. They left her room, crossed the second floor hall or lobby in a diagonal direction and started to descend the stairs. Mr. Young had hold of plaintiff's arm and was on her right side or next to the banister and she was on his left or inside next to the wall. What happened can be best described in plaintiff's own words:

"Well, when we started to make the curve I got on that step (the sixth) and stepped my right foot down and the back board gave down and caught my heel, and at the same time just the edge of my toe caught alongside of the carpet and when I went to lift my foot to step on the next step it threw me headlong."

Plaintiff testified that the back board of the step gave down from a quarter to half an inch; that she fell headlong for a distance of eight steps, skinning her knee and arm and striking her head against the wall; that the cap of her heel was torn off and the leather upon the heel of her shoe was torn loose. She testified that her heel was of medium height; that the step "creaked" at the time; that it had creaked previously when she had walked upon it; that she "never paid any particular attention to it;" that several of the steps had creaked before when she walked upon then.

On the question of visibility, one of plaintiff's daughters testified that from the first to the third step starting from both the top and the bottom of the stairs the light was good "but in the middle of the steps you could not see at all;" that it was impossible to see the crack between the two boards without getting down and lighting a match. Plaintiff testified that during the time she had lived at the hotel she had passed up and down the stairs in question at least twice daily; that she was always careful and "always observed the steps" as she used them; that she knew of the carpet and rubber mat upon the steps; that they could be seen without trouble, "you could always see the carpet;" that at the time she fell whatever was there in the way of a carpet or matting "was in perfectly plain sight and view;" that she did not know the color of the carpet but the matting was "black, gray or dark" and that anyone using the steps "could see what part of the steps was covered with matting and what part was covered with carpet." However, she testified that "you could not see any unusual condition unless you got down and examined it." She was then asked whether the step in question had been in the same condition "during the entire time you had used it." She answered, "Well, as far as I know."

Plaintiff's daughter, Bonnie Burnison, testified that during the first part of July previous to her mother's fall, in going down the stairs the witness stepped on the rear board of the sixth step, breaking the heel off her shoe. There was evidence that the porter and the manager of the hotel were in the office of the hotel at that time; that they came up and asked what had happened and were told, according to another daughter of plaintiff, that "my sister had caught her heel in the step and thrown her and the baby and they both came down the steps, and they both came up to where the step was." "Q. Did they look at it? A. Yes, sir." The daughter who fell further testified that plaintiff was not at home at the time; that when she (plaintiff) returned she related to her mother the circumstances of the fall and told her that she fell "on the first turn" which was the sixth step.

The evidence shows that beginning with the first part of July, 1927, if not before, "the mats were tacked down in front, but on the sides the rug is loose on the steps and when you step, your weight makes the board, the back board, go down anywhere from one-eighth to a quarter of an inch." Plaintiff testified that for a month prior to her fall she had knowledge that the step was made of two boards; that she knew there was "a seam there" and that she meant by seam where the two boards forming the step came together.

The testimony shows that the condition of the stairway was unchanged during the time of plaintiff's residence at the hotel and prior to her injury. The evidence also shows that while there was a rear stairway, the stairway in question was the only one provided for the general use of guests of the hotel.

Defendants insist that their instruction in the nature of a demurrer to the evidence should have been given. There is no merit in this contention. In arguing this point defendants rely for the most part upon two facts or circumstances that were decided against them by the jury upon conflicting testimony. These claimed circumstances are (1st): That no one other than plaintiff had fallen upon the step prior to her fall: (2nd) That the place where plaintiff fell was well lighted. In connection with the point that their demurrer to the evidence should have been sustained, in addition to these claimed circumstances, defendants point out that plaintiff knew of the defect causing her fall but, in claiming that her knowledge defeats her recovery, rely upon a misconception of the law relative to the relationship existing between an innkeeper and his guest. Defendants insist, without citing a single innkeeper case, that the relationship between plaintiff and defendants was the same as that existing between the owner of lands and those coming thereon at his invitation or inducement on business. Where one is a pure invitee, such as where he comes upon the premises of the owner or occupier of land at the latter's invitation on business to be transacted with or permitted by him thereon, if the invitee is injured by the unsafe condition of the premises, which the owner or occupier has suffered to exist, but of which the invitee has notice, then the latter is not entitled to recover. In other words, it is held, that where the owner or occupier of premises has no superior knowledge of the condition of the premises, there is no liability. [Maine v. Lehman, 294 Mo. 579; Mullen v. Sensenbrenner Merc. Co., 260 S.W. 982; Voght v. Wurmb, 300 S.W. 278; Goetz v. Hydraulic Press Brick Co., ...