Early v. Lowe

• Decision Date: 08 March 1938
• Docket Number: No. 8605.,8605.
• Citation: 195 S.E. 852
• Parties: EARLY. v. LOWE.
• Court: West Virginia Supreme Court

195 S.E. 852

EARLY.

v.LOWE.

No. 8605.

Supreme Court of Appeals of West Virginia.

March 8, 1938.

Syllabus by the Court.

1. An innkeeper is not an insurer of the safety of his guests. However, he must use reasonable care for their safety, and this duty extends to public passageways and exits.

2. In an action by a guest against an innkeeper to recover for alleged personal injuries resulting from failure to maintain proper lights and guardrails at an exit from the hotel, which the innkeeper invited the guest to use, a declaration otherwise sufficient is not demurrable on the ground of contributory negligence or assumption of risk, unless it appears from its allegations that the plaintiff failed to exercise ordinary care for his safety, or, knowing the danger, assumed the risk.

Error to Circuit Court, Mason County.

Action of trespass on the case by James M. Early against Homer H. Lowe. To review a judgment sustaining defendant's demurrer to plaintiff's amended declaration and dismissing the action, the plaintiff brings error.

Judgment reversed, and action remanded.

J. G. F. Johnson and F. G. Musgrave, both of Point Pleasant, for plaintiff in error.

Somerville & Somerville, of Point Pleasant, for defendant in error.

RILEY, Judge.

This is an action of trespass on the case, brought by James M. Early, a guest at the hotel of the defendant, Homer Lowe, to recover damages for personal injuries sustained by him in a fall from an elevated concrete platform at the side entrance to the hotel. The plaintiff prosecutes this writ of error to a judgment sustaining a demurrer to his amended declaration and dismissing the action.

The amended declaration, consisting of two counts, alleges that the defendant owned and operated a hotel known as the Lowe Hotel, located on the westerly side of Main street at the intersection of Fourth and Main streets in the city of Point Pleasant; that the lobby, which is above the street level, is reached from Main street through a door on a slight step up from the sidewalk, a flight of stairs and a second door which opens directly into the lobby; that the clerk's or manager's desk is located across the lobby directly west from the front entrance; that a side entrance leads from the lobby to Fourth street, and, in order to go from the front part of the clerk's desk through said side entrance, it is necessary to pass along a narrow passage, dimly lighted only by the lights in the lobby and telephone booth, then down a flight of stairs through a door and screen door, which opened outward onto a concrete platform about 1 foot below thedoor, said platform being about 4 feet above the concrete sidewalk; that from said platform, the sidewalk is reached by steps on both the east and west sides thereof, there being no guardrails on the south side of the platform or along said steps; and that there was no light directly over said concrete platform, the nearest light being the street light at the intersection about 75 feet away.

It is further alleged that the plaintiff, a stove salesman, made visits to the city of Point Pleasant approximately three times a year and at times stopped overnight in said city; that on the day these alleged injuries occurred, he arrived in Point Pleasant after dark, and, having parked his automobile on Fourth street, entered the lobby through the Main street entrance. In the first count, it is alleged that, in talking to the defendant, he made it known that he was going out before retiring to see if his automobile was properly parked in the lot and started towards the front entrance, and thereupon the defendant indicated that he could go out the side entrance, or exit, which was nearer to where plaintiff and defendant were engaged in conversation than the front, or main door; that the plaintiff then proceeded to said side entrance. In the second count, it is alleged that the defendant "negligently allowed, suffered, permitted and invited the said plaintiff to go out upon said platform without warning of its danger."

The breach of duty alleged in both counts is the failure to maintain proper guardrails and steps leading from the platform to the pavement below, and the failure to maintain proper lights. It is also alleged in both counts...