Fiskaa v. Miller

• Decision Date: 25 February 1947
• Docket Number: 29953.
• Citation: 177 P.2d 707,27 Wn.2d 242
• Parties: FISKAA et ux. v. MILLER et al.
• Court: Washington Supreme Court

177 P.2d 707

27 Wn.2d 242

FISKAA et ux. v. MILLER et al.

No. 29953.

Supreme Court of Washington

February 25, 1947

Department 2

Action by Andrew R. Fiskaa and wife against M. P. Miller and others for personal injuries sustained by plaintiff husband in a fall down a hotel stairway. From a judgment of dismissal plaintiffs appeal.

Reversed and remanded with instructions.

Appeal from Superior Court, Benton County; Timothy A. Paul, judge.

Horrigan & Leavy, of Pasco, and George Olson, of Seattle, for appellants.

Moulton & Powell and Thomas B. Gess, all of Kennewick, for respondents.

JEFFERS Justice.

This action was commenced by Andrew Fiskaa and wife against C Dayton Durochur and wife, M. P. Miller and wife, and John Doe Butterfield and wife, as owners and operators of the Commercial Hotel, in Kennewick, Washington, to recover damages for personal injuries alleged to have been received by Andrew Fiskaa, on the morning of April 20, 1945, while he was a transient guest in the hotel.

It is alleged the injuries were caused by the negligence of defendants in maintaining off a lower hallway an unguarded open doorway at the top of a steep stairway leading to the basement, which lower hallway, stairway, basement and open doorway were wholly unlighted.

It is alleged that plaintiff Andrew Fiskaa, on the morning of April 20, 1945, in going from his room on the third floor of the hotel to the office, fell through this unguarded and open doorway and down the steps to the basement floor, receiving the injuries for which he seeks damages.

Defendants by their answer, denied the material allegations of the complaint, and affirmatively alleged that if plaintiff sustained any injury, the same was caused and contributed to by his own careless and negligent acts.

The reply denied the affirmative matter set up in the answer.

The cause came on for trial on March 6, 1946, Before the court and jury. Plaintiffs introduced testimony in support of the allegations of their complaint, and at the close of plaintiffs' case, counsel for defendants made the following motion:

'Defendants at this time move the court for a non-suit and dismissal of plaintiffs' case on the ground there is not sufficient evidence of negligence on the part of defendants to take the case to the jury; and also on the further ground there is a definite showing of contributory negligence on the part of the plaintiff that bars his recovery as a matter of law.'

It appears conclusively from the statement of facts that the above motion was granted on the sole ground that the court concluded, as a matter of law, that plaintiff Andrew Fiskaa was guilty of contributory negligence.

A judgment of dismissal was entered on April 1, 1946, from which plaintiffs have appealed. In this opinion, Andrew Fiskaa will be referred to as though he were the sole appellant.

It is assigned as error that the court erred in holding as a matter of law that appellant was guilty of contributory negligence, and in granting respondents' motion for nonsuit at the conclusion of appellant's case.

We again refer to the rule stated in Billingsley v. Roving-Temple Co., 16 Wash.2d 202, 133 P.2d 265, that:

'A challenge to the sufficiency of the evidence, a motion for nonsuit, a motion for a directed verdict, or a motion for judgment notwithstanding the verdict admits the truth of the plaintiff's evidence and all inferences that reasonably can be drawn therefrom, and requires that the evidence be interpreted most strongly against the defendant, and in the light most favorable to the plaintiff.'

Having in mind the above rule, let us examine the evidence to see whether or not the trial court was justified in holding as a matter of law that appellant was guilty of contributory negligence.

It is admitted that all during the month of April, 1945, Abbie Butterfield and M. P. Miller and wife were operating the Commercial Hotel, in Kennewick, under a lease from C. Durochur and wife; that the hotel was operated as a public house, catering to transient guests; that a charge was made for the accommodations furnished.

Appellant, who was a traveling salesman, registered at the Commercial Hotel on the evening Before the accident, and was assigned to a room on the third, or top, floor by Mrs. Butterfield, who gave appellant a key, and told him to go to the top story and go back to the red light, turn to the right, and proceed down the hall to No. 43, which was the last room on the right. Mrs. Butterfield stated that those were all the directions she gave appellant. She further stated that appellant left a call for five o'clock the following morning, and went up to his room around nine or ten P.M. No one took Mr. Fiskaa up to his room, but he found if from the directions given by Mrs. Butterfield.

Before appellant went up to his room, he noticed two swinging doors at the back part of the office, and saw people going back and forth through those doors. Appellant had never stopped at the Commercial Hotel Before .

Mrs. Butterfield pointed out to appellant the stairway which would take him to his room. The stairs he took going to his room were carpeted and lighted.

At about five o'clock on the morning of the accident, appellant was awarkened by someone knocking on his door. He got up, dressed, and started down the hall for the office. He saw a stairway to his left, and, not seeing any other, started down this stairway from the third to the second floor. There was no door at the top of this stairway, nor was there any sign indicating it was not for use by the public generally. It was just like other stairways, except that it was not carpeted and not lighted, save as light came in from the landings. Appellant realized that these stairs were not the ones which he had used in going to his room the evening Before , but, thinking they would take him to the office, he proceeded on down from the third to the second floor, and from the second to the first floor. It was dark when he got down to the first floor, and he could see nothing except a door straight ahead, with a curtain over it. There was a small light in that room, but it gave very little illumination out on the landing where appellant was. As stated, there was no light on any of the stairways. Appellant testified:

'Q. What did you do? A. Well, I tried my best to find my bearings and I though of the door entering to the office would be a little bit to the right.

'Q. Which door to the office? A. The back part of the door leading into the office. I thought there was a door I was looking for. I knew there was a door in the back part of the office; I had seen people going through there and I thought maybe it was a short-cut as an entrance to that lobby.

'Q. What did you do in your search for that? A. Well, I was using my feet and hands at the same time, trying to feel my way.

'Q. And what were you feeling for? A. For the door.

'Q. Did you find one? A. No.

'Q. What happened? A. I fell down the stairs. * * * 'Q. What caused you to fall? A. Well, I was coming on the floor, feeling my way. I stepped off down through this stairway.

'Q. What caution were you using because it was dark? A. Well, I was walking slowly and feeling my way.

'Q. How many steps did you take Before you fell in this opening? A. I imagine I hit the second or third step; I wouldn't say which one.

'Q. The second or third step of the stairs? I mean, how many steps did you take Before you fell in the opening? A. I don't know exactly how far it is from the stairs to the basement opening. I don't know if it was ten feet or twelve feet, or what.

'Q. After you fell, what happened then? Where did you fall to? A. The basement floor.'

The night clerk heard appellant and came from the office, turned on a light, and helped him up the steps.

Appellant testified he had no trouble going down the two flights of stairs, as there was a railing and he was holding on to that. He further testified that he did not knock on or attempt to open the door which was in front of him when he reached the main floor, as he thought it was a private room.

Appellant's explanation of why he went down those stairs was that they were the first stairs he came to, about fifteen or twenty feet from his room, and he thought they would lead to the lobby.

On cross-examination, appellant...