Dixon v. Lobenstein

• Decision Date: 21 October 1939
• Citation: 132 S.W.2d 215,175 Tenn. 105
• Parties: DIXON v. LOBENSTEIN et al.
• Court: Tennessee Supreme Court

132 S.W.2d 215

175 Tenn. 105

DIXON v. LOBENSTEIN et al.

Supreme Court of Tennessee.

October 21, 1939

Error to Circuit Court, Knox County; L. H. Carlock, Judge.

Action by Constance Dixon against Gertrude Lobenstein and others for injuries allegedly caused by a fall from a gallery in lodging premises. Judgment dismissing the action, and plaintiff brings error.

Affirmed.

W. C Burton, of Knoxville, for plaintiff in error.

Frantz McConnell & Seymour, of Knoxville, for defendants in error Gertrude and Bessie Lobenstein.

Testerman Ambrose & Badgett, of Knoxville, for defendant in error Mrs J. V. Wyrick.

Green, Webb, Bass & McCampbell, of Knoxville, for defendants in error Leonard Jones, E. W. Ogden and Fidelity-Bankers Trust Co.

CHAMBLISS Justice.

This is an action for damages brought by a lodging room tenant for injuries alleged to have been received in a fall from a gallery on the premises in which she lodged, resulting from the giving way of a banister, or rail, which she alleges was decayed, rotten and defective. She sued Gertrude and Bessie Lobenstein, as the owners of the lodging house, Leonard Jones and E. W. Ogden as lessees holding under a ninety-nine year lease, Fidelity Bankers Trust Co., as the rental agents of the lessees, in charge of the property as such, and Mrs. J. V. Wyrick as the renting occupant from whom the plaintiff rented a room.

The trial Judge sustained demurrers to the declaration and dismissed the case as to all the defendants and plaintiff appeals.

Several grounds of the demurrers interposed the defense of contributory negligence apparent on the face of the declaration. This defense was expressed in different language in several grounds of the demurrers and included the issue of assumed risk.

The declaration describes the building as a two story house with a large basement fronting on the north side of West Church Avenue at a point where the ground slopes rapidly toward the rear. A gallery, or porch, extended across the rear of the building and from this porch there descended an outside stairway to the ground below. The floor of this gallery was some thirteen feet above the ground. The declaration alleges that "there is a hand rail attached to and made a part of the steps leading to the porch. There was a single rail banister on the end and one side of said porch." The stairway, porch and banister are all constructed of wood, this rail being supported by three posts. She alleges that the banisters and approach were in a "defective, dangerous and rotten condition", and by way of emphasis of this condition she says that Mrs. Wyrick, the defendant, knew of it and having observed it had called the attention of an employee of the Fidelity Bankers Trust Co. to it more than a year before the accident occurred. The import and necessary implication of the allegation made is that this condition was so bad that its danger was apparent and that it was therefore gross negligence on the part of the defendants, and of all of them, to fail to replace said rotten and dangerous banisters. It will be noted that this is not a case of latent defect, or of a defective condition which was not apparent upon slight inspection or examination.

The declaration alleges that plaintiff is a young woman about twenty-two years of age and that she occupied a room on the same floor with this porch and down the hall way leading toward it, and that on the afternoon of September 9, 1934 she "walked out of her room onto the porch and placed one of her limbs on the banister of the porch aforesaid in a sitting posture and was in a position of rest when without a moments warning the banister, which was supported by three posts, immediately gave way and crashed to the ground some thirteen and a half feet below." Sh...