Dempsey-Vanderbilt Hotel v. Huisman

• Decision Date: 23 November 1943
• Citation: 153 Fla. 800,15 So.2d 903
• Parties: DEMPSEY-VANDERBILT HOTEL, Inc., v. HUISMAN.
• Court: Florida Supreme Court

15 So.2d 903

153 Fla. 800

DEMPSEY-VANDERBILT HOTEL, Inc., v. HUISMAN.

Florida Supreme Court

November 23, 1943

Rehearing Denied Jan. 4, 1944.

Appeal from Circuit Court, Dade County; Ross Williams Judge.

Knight & Green, of Miami, for appellant.

Nat L Williams, of Miami, for appellee.

SEBRING, Justice.

Coanraad Huisman was a paying guest at a hotel maintained and operated by Dempsey-Vanderbilt Hotel, Inc. While descending a stairway leading from the hotel to the ocean front, he fell sustaining personal injuries. The treads of the stairway were made of unglazed tiles cemented together. Huisman sued Dempsey-Vanderbilt Hotel, Inc., for the injuries sustained. The declaration alleged that a step in the stairway maintained for the use of guests at the hotel was in such a broken and defective condition that Huisman slipped and fell when he stepped thereon. It was charged in the declaration that this defective condition had existed for such period of time that the proprietor had knowledge, or was put on notice of this condition. Pleas of the general issue, contributory negligence, and a denial of knowledge or notice of the defective condition, were filed by the defendant. Upon the trial, Huisman received a verdict for $2,500. Motion for new trial was denied and final judgment was entered on the verdict. The defendant appealed from the judgment.

It is first contended by appellant that the trial court erred in overruling a demurrer to the declaration. The ground urged is that it affirmatively appears from the face of the declaration that at the time of the accident the hotel guest was guilty of negligence that proximately contributed to his injury. We do not consider this contention maintainable. There may be cases where a plaintiff, by the allegations of his own declaration, will preclude himself from recovery against the tort-feasor because of contributory, or sole, ngligence appearing on the face of the pleading. But such cases are rare, and this is not one of them. Although the declaration upon which the parties went to trial may have been inartificially drawn, it did not wholly fail to state a cause of action. $The next assignment of error is directed to the sufficiency of the plaintiff's evidence in chief to sustain the allegations of the declaration, as against a motion for directed verdict made at the close of the plaintiff's case. It is submitted that the plaintiff failed to prove either that the hotel corporation had knowledge of the defective condition of the stairway, or that the condition had existed for such period of time as to charge defendant with notice thereof. It is also urged in connection with this assignment that because the accident occurred upon a clear day at a time when the steps were dry, the alleged defective condition of the stairway was readily observable to the plaintiff, and his failure to protect himself from injury thereby must prevent recovery on the ground of contributory negligence.

According to the plaintiff's testimony the accident occurred at about 11:30 o'clock in the forenoon. Huisman was fully clad at the time. After registering at the hotel as a paying guest he had gone out on a tiled terrace overlooking the ocean and, after pausing there for a few moments, had started down the stairway leading to a swimming pool adjacent to the hotel. He had proceeded in a leisurely manner keeping a general lookout ahead in the direction he was going. He had not observed any defect in the stairway, nor did he have knowledge of any such defect prior to the accident. As he stepped on the tread of the second step descending, the heel of his shoe hooked or caught in somehting in the tread, and he was thrown to the bottom of the stairway. After resting for a few minutes and recovering from the shock of the fall, Huisman examined the stairway from whence he had fallen. He found upon examination that at the spot where his heel had caught, some of the tiles were loose and insecure and a V-shaped segment about three inches wide and two inches deep had been broken from the front of the tread at a point where two tiles had been cemented together. Otherwise, the steps were clear of defects, débris, or obstructions of any kind that might have caused the mishap to the plaintiff. A few days after the accident Huisman related his experience to the manager of the hotel, and showed him the spot where the accident had occurred. At that time the manager stated to Huisman, 'I knew about it, I will take care of you, everything.'

One Jolles was called as a witness for the plaintiff. He testified that approximately one month prior to the accident he had walked down the stairway and had noticed several tiles that were somewhat broken in the manner descirbed by the plaintiff. Also, he had seen the stairway on the day of the accident and it was then in the same condition as it had been at the time he had first seen it.

It will be observed that not only was proof offered which fairly tended to prove the cause of the accident, but testimony was adduced that this condition had existed for at least thirty days prior to the accident. In our opinion, this testimony, which, for the purpose of the motion for instructed verdict must have been admitted as true, established the existence of the defective condition for such period of time as to charge defendant with notice thereof. As to the point that on his own testimony plaintiff must be held guilty of contributory negligence barring recovery as a matter of law, we think that issue was for the jury under appropriate instructions from the court.

Not every person who goes upon a public stairway by implied invitation and is injured thereon is precluded from recovery on the ground of contributory negligence, even though the accident happens in the light of day. One lawfully walking upon a stairway to which he has been invited is not bound, at his peril, to discover and guard against every defect in the steps he is traversing, even though had his attention been directed to such defect he could have readily avoided it. It is not 'contributory negligence' to fail to look for danger when there is no reason to apprehend any. Sears Roebuck & Co. v. Geiger, 123 Fla. 446, 167 So. 658. Such person is charged with the duty of keeping a general lookout in the direction he is traveling and of using ordinary and reasonable care to avoid known or obvious dangers. But he has the right to act upon the assumption that the stairway maintained for his convenience is in a reasonably safe condition for travel, and to conduct himself accordingly. J. G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45, Ann.Cas.1913C, 564; ...