Cumming v. Allied Hotel Corporation

• Decision Date: 08 November 1940
• Docket Number: No. 25394.,25394.
• Citation: 144 S.W.2d 177
• Court: Missouri Court of Appeals
• Parties: CUMMING v. ALLIED HOTEL CORPORATION

144 S.W.2d 177

CUMMING v. ALLIED HOTEL CORPORATION

No. 25394.

St. Louis Court of Appeals. Missouri.

November 8, 1940.

Rehearing Denied November 26, 1940.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action by Ida Cumming against the Allied Hotel Corporation for personal injuries. From a judgment for plaintiff, defendant appeals.

Affirmed.

Carter & Small and James E. Garstang, all of St. Louis, for appellant.

Russell J. Horsefield and Chelsea O. Inman, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

Statement of Facts.

In this action plaintiff seeks damages for personal injuries she suffered on October 5, 1937, in room 740 of the Marquette Hotel in the City of St. Louis. On the day plaintiff received her injuries her son-in-law, Dr. Ralph S. Matheny, brought the plaintiff and his wife and two small children to St. Louis for the purpose, among other things, of viewing the Veiled Prophet's Parade. The room in the hotel was engaged on the Sunday preceding October 5th and paid for in advance. On arriving at the hotel at about 4:30 o'clock in the afternoon of October 5th, Dr. Matheny registered as "Dr. R. S. Matheny & Family". Room 740 was on the Washington Avenue side of the hotel, and there were two windows to the room, both in the north wall, 14 feet from the door to the bathroom, at which place plaintiff fell and was injured.

Plaintiff testified that when they were shown to the room by the bellboy, the bellboy departed without having shown any of them the location of the bathroom, the location of light switches, or how or where to turn the lights on, nor did the bellboy try the lights in either the room or the bathroom. The window blinds were more than half way down and the room was dim — not very light. The bed was between the windows and the bathroom door, and threw a shadow on such light as came from the windows clear to the bathroom door. After being shown to the room by the bellboy, Dr. Matheny and his wife left immediately to do some shopping. Plaintiff helped the children remove their wraps and wishing to go to the bathroom, she went to the bathroom door and before entering attempted to turn on the lights in the bathroom by reaching her hand in to the bathroom and feeling along the wall for a light switch. She felt something she could work up and down like a light switch, and did work it, but no light came on. She said she had to go to the bathroom and looked around and could see the white floor of the bathroom, whiter than the carpet outside which she was standing on, and she stepped up onto that white floor. Without more light she could see the white floor of the bathroom contrasting with the dark carpet of the room, and she stepped over onto the white floor of the bathroom, and observed that the bathroom floor was higher than the room floor but did not know how much; she did not see any step there. There was sufficient light that by feeling around she was able to find the toilet bowl. When she started to leave the bathroom she wanted to be sure, to be careful not to fall. She stepped from the white bathroom floor by reaching her right foot over to step onto the dark part, which she thought was the carpet of the room. Instead, however, she stepped on a granite slab which she did not know was there, and her foot slipped and her leg crumpled up under her and she fell. She said she could not see the outline of the step but could only see the line between the white and the dark. That the carpet of the room was a dark, reddish brown color.

During the trial it was admitted by counsel that the granite top to the bathroom step is light chocolate brown in color and interspersed with white spots. Also during the trial defendant produced in court for the inspection of the jury what it claimed to be the carpet on the floor and the granite slab at the time of the accident.

The hospital records of plaintiff's injuries were read in evidence. No question is raised by defendant touching the serious nature of plaintiff's injuries; sufficient to say she received a fracture of the neck of the right femur and is permanently injured and has suffered and will suffer great pain as a result of her injuries; she gets around by means of crutches.

Dr. Ralph S. Matheny testified that when they entered the room at 4:30 P. M. it was decidedly not light, there were definite shadows about the room, and the bellboy did not show any of them the location of the bathroom or of the light switches. After taking Mrs. Cumming to the hospital he returned to this hotel room where he spent the night. There was no light in the bathroom which would operate by a switch. He looked but could not see any light bulb. The next morning he used the bathroom and there was no light bulb in the ceiling. There was a light on the bathroom wall over the wash basin.

On cross-examination Dr. Matheny testified that the step shown him in the court room by counsel did not appear to be the step involved in the accident; that according to his recollection the step involved was much darker. The step in the bathroom was similar to the color of the carpet. The difference was very slight. The light over the wash basin was operated by a pullchain. This light was very weak and with it burning a person coming out of the bathroom could not distinguish the edge of the step. The step shown him by counsel in the court room was lighter in color than the step involved in the accident. He gave the bellboy a tip but the boy did not show them the location of the light switches.

There was evidence that the walls of the bathroom were lined with light green tile which extended about four feet from the floor. The walls above the tile were a kind of cream color. The step leading from the bathroom floor was of granite material. It was described as being a dark colored granite.

C. C. Maurer, an engineer, testified that he had made the plat of room 740 at the Marquette Hotel which was used in evidence and which shows the measurements of the room. The length of the room from east to west is 19'8", and from north to south, from the entrance door to windows is 20'6". The bathroom is 9'7" from the door back to the wall; the other dimension being 6'6". The difference in elevation between the marble slab on the bathroom and the rug on the room floor is 6", and the marble slab has a rounded edge, facing the room proper; the width of the slab being 5½". The nearest window in the room is 14' from the bathroom door. The window is 3'3" wide. In the bathroom is one ceiling light and a chain-pull light over the wash bowl.

Defendant produced evidence as follows:

Edward Raper, a bellboy in the employ of defendant, testified the bellboys were instructed by the hotel, when showing guests to their rooms, to show them the location of the light switches and to test the lights to be sure they were working. That was the practice and it was the duty of the bellboy to check the whole room and if anything was missing to see that it was replaced. If the maids found any lights not working it was their duty to report it to the hotel. He knew nothing of the accident in question.

Witness Lee Hale, a photographer, identified photographs taken by him of the hotel room in question, and which, while not formally offered in evidence, were referred to and exhibited during the course of the trial.

Several bellboys at the hotel testified substantially as did witness Edward Raper. Each of them said he had no recollection of showing Dr. Matheny and his family to the room. They further testified to the effect that their instructions from the hotel management was to see that the lights were working when they took a guest to a room.

Louis Camey, maintenance man at the hotel, testified, that he knew nothing about the accident in question at all; that it was his duty to repair and replace lights and things like that. The ceiling light in the bathroom of room 740 is operated by a switch right off the woodwork inside the door on the west side. The maid and bellboys attend to finding out whether the lights are in order when they put a guest in the room. The girl inspects the room and if she finds something wrong she reports it; so do the bellboys when they put a guest in the room. The bellboy is the last one who checks it before a guest takes the room.

Sadie Coblin, a maid employed by the defendant, testified that room 740 was not occupied on the morning of October 5, 1937, and on that morning when she went to work at 7 o'clock she went in and cleaned this room and checked it over. It was the maid's duty to see that the lights were working and if they were not to report this fact to the linen room. She checked the lights in the room that morning and they were all right. She also checked the light in the bathroom. She said she was sure the light was on because it was her daily work to check the lights, and if the light wasn't there it would be her duty to report it.

At the close of the evidence defendant requested the court to give and read to the jury an instruction in the nature of a demurrer to the evidence, which the court refused to give. The case was submitted to the jury, who returned a verdict in favor of plaintiff in the sum of $7,500. After unavailing motion for new trial the case reaches this court on defendant's appeal.

The Pleadings.

1. Plaintiff, in her amended petition, alleged that on the 5th day of October, 1937,...