Burrell v. Mayfair-Lennox Hotels, Inc., MAYFAIR-LENNOX

• Decision Date: 09 June 1969
• Docket Number: MAYFAIR-LENNOX,No. 54081,No. 1,54081,1
• Citation: 442 S.W.2d 47
• Parties: Dessa Jane BURRELL, Respondent, v.HOTELS, INC., a Corporation, Appellant
• Court: Missouri Supreme Court

Page 47

442 S.W.2d 47

Dessa Jane BURRELL, Respondent, v. MAYFAIR-LENNOX HOTELS, INC., a Corporation, Appellant.

No. 54081.

Supreme Court of Missouri, Division No. 1.

June 9, 1969.

Daniel P. Reardon, James K. Pendleton, St. Louis, for respondent.

Joseph H. Mueller, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.

HENRY I. EAGER, Special Commissioner.

This is a suit for personal injuries sustained by plaintiff in a fall down the steps leading from the lobby of the Lennox Hotel to the Rathskeller. Plaintiff was an airline hostess and, at the time of her injury, was a paying guest in the hotel, which is owned by the defendant. The jury found for plaintiff and assessed her damages at $23,000. The trial court, on motion for a new trial, required a remittitur of $5000 to which plaintiff consented. The appeal is here from a judgment of $18,000.

Plaintiff's amended petition alleged that her fall was caused by defendant's negligence in allowing the top step of the stairway to become 'loose, unstable, worn down and hollowed out under the carpeting of the lobby * * *,' and also that the area was poorly lighted; other allegations of negligence are not material now. It was further alleged that defendant knew or should have known of the dangerous and defective conditions. The steps were conceded to be of marble (possible the top step was terrazzo) but the top step was covered out to its edge by a carpet. Defendant denied the substantive allegations and pleaded general contributory negligence. The negligence hypothesized in plaintiff's only verdict-directing instruction, No. 2, was that 'there was a depression in the surface of the floor which was covered by carpeting and as a result the floor was not reasonably safe for guests * * *.' Defendant conversed the existence of a depression.

The injury in question occurred on January 27, 1963; the unusual delay seems to be due to the fact that suit was not filed until April 20, 1966. At the time of trial plaintiff was 35 years of age and unmarried; she lived in Kansas City. She was due to go out an another flight at 5:30 on the afternoon of the accident, and she and her hostess partner, Jean Cizaldo, went to the lobby to get something to eat at about 2:30 p.m. They found the lunchroom closed (the date was on Sunday) and were directed to the Rathskeller. Plaintiff's companion was a little ahead and to the right as they approached the head of the stairs. There were about eight steps down to a landing, with more downward from there. Plaintiff's further testimony was in substance as follows: that the lighting was poor but she could see the floor; that the lobby was carpeted with a navy blue carpet with a 'red blush' which extended to the edge of the top step; that this carpet was pulled over 'worn, cupped-out area'; that her left foot went down 'in that cupped-out area and threw me off balance, and I went down the stairs'; that she struck the edge of a step on the extreme lower part of her back or her buttocks; that she was wearing 'mid-heel' shoes, presumably medium heels; that the back of her dress felt wet and gritty after the fall; that the area under the carpeting where she fell was 'cupped-out' (repeated); that she looked at the top step when she came up after her fall, again that evening when she came back from Barnes Hospital, and still later on the next Tuesday with her supervisor; that she could 'feel it by pushing down on it with my foot'; that it was the 'cupped-out area; which caused her accident; that she saw no abrasive strips on the steps; that her foot slipped on the lobby level, but her first impact was at about the second step down, and she 'bounced' on down further; that she felt the cupped-out area at 'about a foot' back from the edge of the top step, and her foot went down; that later she saw a depression, and she could 'push down on it'; on the next Tuesday she saw the depression again. Plaintiff had been in the hotel 3 or 4 times previously but in the Rathskeller only once, at which time she entered and left from the street door. She testified that at the time of her fall neither the chandelier in the lobby nor the light on the landing of the stairs was burning.

Plaintiff was taken promptly to Barnes Hospital where she was examined and X-rays taken; she returned to the hotel about 8:00 p.m. A prescription was given to her and she was told to get off her feet, take the medicine and aspirin and take hot baths. On Tuesday, January 29, she went to the Sutter Clinic (the hotel doctors) because, she said, she had to have a 'release' before she could leave. More X-rays were taken there. Late on Tuesday she returned to Kansas City with her supervisor. There she contacted her personal physician, Dr. Florence MacInnis, who put her in St. Mary's Hospital; she stayed there two weeks, attended by Dr. MacInnis and an orthopedist, Dr. Maurice F. Perll. Dr. Perll testified by deposition. She went both to Dr. MacInnis and to Dr. Perll on various occasions after she left the hospital; Dr. Perll last saw her in March, 1964. She was also attended by: Dr. Lowry, a gynecologist; Dr. McClanahan, a general practitioner; Dr. Ira Smith, a urologist; Dr. Sherrer, a proctologist and Dr. Rockwell, a gynecologist. She did not resume work until July 17, 1963 and was off about four days in January 1964; she testified that, although she had sufficient seniority, she could not thereafter 'bid' on certain runs which she preferred because she could not stand the extended effort required.

Plaintiff's primary injury was to her coccyx, the extreme end of the spinal collumn. She testified that when she fell she was in much pain; after seeing the doctors she took hot baths and medicine, and tried to stay off her feet; she had difficulty with her urination and also her bowel movements; she was placed on a soft-food diet by her doctors. Various X-rays were taken; she was given medicine for pain; she continued to see one or more doctors 'nearly every month until 1966, some of which was for her 'bladder problem.' The medical evidence for plaintiff was generally as follows: that she had sustained an injury to the sacrococcygeal area, as disclosed by physical examination and X-rays and that her condition was caused by the fall; that plaintiff complained of pain in the 'low back and tailbone' area with some pain radiating into the right hip; that standing or sitting for a long time aggravated the pain, and that it increased with weather changes and before her menses; that standing for any length of time caused a 'bearing down' feeling at and below the low back, and prolonged sitting bothered her and her legs got numb (this as late as October 1967). Such evidence further was: that there was tenderness in the areas involved, and that the diagnosis was 'chronic coccygodynia (painful coccyx) resulting from the fall of January 27, 1963'; that the coccyx is very close to the rectum and that only 'conservative' treatment can be given; that some type of girdle might be of some help; that pain was elicited on deep palpation in the lower lumbar and sacral regions as late as October 1964; Dr. Perll rated plaintiff's permanent disability as 5--7% of the body as a whole. Plaintiff's other medical witness found a 'healed' fracture line in the coccyx in an X-ray taken in October 1967; Dr. Perll found no fracture in X-rays taken in February 1963; there was some evidence that such a fracture might not show up in X-rays until after healing had started. There was also testimony of deformity of the coccyx, and of the very considerable risk of an operation in that area. One doctor included 'lumbosacral strain, recurrent' in his diagnosis, caused by the trauma. That doctor explained that the conditions found were consistent with plaintiff's complaints including those already related and also including,--sitting on a hard chair, ascending or descending stairs, and discomfort in bowel movements. Plaintiff's medical evidence fairly showed the permanency of her conditions which had continued for more than five years at trial time. Plaintiff also testified: that her complaints at trial time were substantially the same as in 1963 as, that she could not sit for long periods, that her legs got numb and it felt as though she was 'sitting in ice water,' and that she could not stand for more than 10 or 15 minutes without a feeling of 'pressure bearing down'; that she could not bowl or dance, and that she is bothered in driving a car. Plaintiff bought and used an orthopedic mattress and wears a firm, strong girdle.

It was more or less conceded that plaintiff had lost approximately $3000 in wages and sick leave time. Apparently her hospital and medical bills were paid by her employer or by insurance. During her testimony the court sustained objections to all proffered evidence concerning her bladder troubles and menstruation, and plaintiff's counsel seemingly made no serious effort to connect these up with her fall. Evidence did remain as to her difficulty in urination.

The lay testimony for defendant was generally as follows: that a new carpet was installed in the hotel lobby, from wall to wall, in July of 1962; that this was laid over rubber padding and on a terrazzo floor, but the witness assumed that the top step of the stairway in question was of marble, like the other steps; the assistant manager of the hotel testified that plaintiff stated, right after the fall, that she 'just tripped at the top step and fell down'; he testified also, that there was no worn spot in the carpet and that he found no uneveness or worn spot under the carpet. We note here that no witness pretended that anyone had removed the carpet and examined the floor under it. Five photographs of the stairway were offered and received; three of these showed the stairway and the top step with a distinct pattern or design in the carpeting on the top step, and abrasive treads of the other steps; one color photograph...