Knight v. Moore, Record No. 2432.

• Decision Date: 19 January 1942
• Docket Number: Record No. 2432.
• Parties: LOUISE KNIGHT, AN INFANT, ETC. v. RUTH FRIEND MOORE, ET AL.
• Court: Virginia Supreme Court

Page 139

179 Va. 139

LOUISE KNIGHT, AN INFANT, ETC. v. RUTH FRIEND MOORE, ET AL.

Record No. 2432.

Supreme Court of Virginia, Richmond.

January 19, 1942.

Present, All the Justices.

1. NEGLIGENCE — Duty to Invitee — Owner Not Insurer of Invitee's Safety. — The owner of premises is not an insurer of his invitee's safety thereon.

2. NEGLIGENCE — Duty to Invitee — Owner Must Use Ordinary Care to Render Premises Safe. — The owner of premises must use ordinary care to render the premises reasonably safe for an invitee's visit.

3. NEGLIGENCE — Duty to Invitee — Duty of Owner to Give Notice of Unsafe Condition. — While the owner of premises must give to an invitee notice or warning of an unsafe condition which is known to him and is unknown to the invitee, such notice is not required where the dangerous condition is open and obvious, and is patent to a reasonable person exercising ordinary care for his own safety.

4. NEGLIGENCE — Duty to Invitee — Duty of Owner Co-Extensive with and Limited by Invitation. — The duty which a proper owner owes to an invitee is co-extensive with and limited by the invitation. In other words, the duty of exercising ordinary care to render the premises reasonably safe for the visit does not extend to places beyond the invitation and to which the invitee is not reasonably expected to go.

5. NEGLIGENCE — Duty to Invitee — Invitee Has Right to Assume Safety of Premises. — An invitee has the right to assume that the premises are reasonably safe for his visit. In the absence of knowledge or warning of danger, he is not required to be on the lookout for it.

6. NEGLIGENCE — Duty to Invitee — Questions for Jury. — Unless the evidence is without conflict, or unless fair-minded men cannot differ on the inferences to be drawn from it, the questions as to whether the owner of the premises has exercised the required care toward his invitee, and whether the latter has been guilty of contributory negligence, are matters for the jury.

7. NEGLIGENCE — Duty to Invitee — Questions for Jury — Case at Bar. — The instant case was an action to recover damages for personal injuries received by plaintiff while on defendants' premises as an invitee. Defendants operated a lake for swimming, in and around which were located various amusement devices. While plaintiff was proceeding along the shore of the lake she tripped over a cable which was anchored in the bank, fell forward, struck a companion cable and was injured. The accident occurred at night but the lake and the various amusement devices located there were lighted by floodlights. Plaintiff claimed that at the time she tripped she was walking along what appeared to be a narrow walkway or beach bordering on the edge of the water, but defendants claimed that plaintiff was proceeding along what they termed a "scum gutter", obviously not intended as a walkway. Plaintiff and her witnesses claimed that the ends of the cables which she struck were dark and discolored and not easily discernible, that the area where the ends of the cables were anchored in the bank was unlighted, that the cables themselves were unguarded, and that there was nothing in the situation to warn her that she was in a dangerous area or one not intended for the use of patrons; but each of these claims was denied by defendants' witnesses. Defendants' witnesses said that at the time plaintiff struck the cable she was running, with her attention fixed on bathers in the lake, but this was denied by plaintiff. The jury returned a verdict for defendants.

Held: That it was a question for the jury whether the location of the cables across the edge of the lake created a dangerous situation at a place where patrons of the lake were invited or had the right to go, or whether the area surrounding the cable anchorage was sufficiently lighted to give the patrons of the lake sufficient notice of the situation, or whether this area was sufficiently guarded. It was likewise a question for the jury whether plaintiff knew of the situation, or whether it was so open and obvious and patent to her that in the exercise of ordinary care she should have observed it.

8. NEGLIGENCE — Duty to Invitee — Duty to Warn of Dangerous Condition — Placing Burden of Lookout on Invitee Erroneous — Case at Bar. — The instant case was an action to recover damages for injuries sustained by an invitee on defendants' premises. Defendants operated a lake for swimming and plaintiff was injured when she tripped over cables anchored in one bank of the lake. The court instructed the jury that if they believed from a preponderance of the evidence that the location, construction and maintenance of the cables created a dangerous condition at a place where patrons were invited or had a right to go, it was the duty of defendants in some reasonably effective way to warn patrons of such condition or to exclude them from its location, unless plaintiff knew, or "in the exercise of reasonable care on her part for her own safety should have known or discovered such condition."

Held: That the instruction was erroneous in that the quoted words deprived plaintiff of the right to assume that the premises were reasonably safe, and placed upon her the burden of being on the lookout for a dangerous situation even though it was unknown to her and even though she had not been warned of it.

9. WORDS AND PHRASES — "Discover" — "See" or "Observe". — The word "discover" is not synonymous with the words "see" or "observe." Those things which are patent or obvious to persons they readily and ordinarily "observe." By the exercise of extraordinary diligence persons "discover" — that is, uncover or bring to light — things which may be hidden or latent.

10. NEGLIGENCE — Duty to Invitee — Owner Must Warn of Dangerous Condition unless Known or Open and Obvious — Case at Bar. — The instant case was an action to recover damages for injuries sustained by an invitee on defendants' premises. Defendants operated a lake for swimming and plaintiff was injured when she tripped over cables anchored in one bank of the lake. The court instructed the jury that if they believed from a preponderance of the evidence that the location, construction and maintenance of the cables created a dangerous condition at a place where patrons were invited or had a right to go, it was the duty of defendants in some reasonably effective way to warn patrons of such condition or to exclude them from its location, unless plaintiff knew, or "in the exercise of reasonable care on her part for her own safety should have known or discovered such condition."

"Held: That the instruction should have closed with the following or similar language: "unless" plaintiff "knew of the situation, or unless it was so open and obvious that it should have been seen or observed by a person in the exercise of ordinary care for his own safety."

11. NEGLIGENCE — Duty to Invitee — Owner Must Warn of Dangerous Condition — Conflicting Instructions — Case at Bar. — The instant case was an action to recover damages for injuries sustained by an invitee on defendants' premises. Defendants operated a lake for swimming and plaintiff was injured when she tripped over cables anchored in one bank of the lake. The court instructed the jury that if they believed from a preponderance of the evidence that the location, construction and maintenance of the cables created a dangerous condition, at a place where patrons were invited or had a right to go, it was the duty of defendants to warn patrons of such condition or to exclude them from its location, unless plaintiff knew, or "in the exercise of reasonable care on her part for her own safety should have known or discovered such condition."

Held: That this instruction conflicted with another instruction, which correctly told the jury that if they believed that the cables over which plaintiff fell were open and obvious and should have been observed by a person in the exercise of reasonable care and prudence, it was not the duty of defendants to give any warning of such situation.

12. NEGLIGENCE — Duty to Invitee — Admissibility of Evidence of Prior Accidents — Case at Bar. — The instant case was an action to recover damages for injuries sustained by an invitee on defendants' premises. Defendants operated a lake for swimming and plaintiff was injured when she tripped over cables anchored in one bank of the lake. Plaintiff assigned as error that the trial court permitted defendants to show, over plaintiff's objection, that over the period of years during which the lake had been in operation no other person had been injured by coming into contact with the cable over which plaintiff tripped. Prior to the admission of this evidence, plaintiff's counsel had proved that on a prior occasion another patron on the lake had fallen over the same cable, although there was no proof that defendants had had any knowledge of this accident.

Held: That plaintiff, having undertaken to prove by reason of a similar accident on a former occasion that the condition was unsafe, could not complain because defendants undertook to rebut this by showing that although the premises had been patronized by a great number of people over a long period, no other accident had occurred in the place where plaintiff was hurt, and that hence the situation there was reasonably safe.

Error to a judgment of the Circuit Court of Chesterfield county. Hon. J. G. Jefferson, Jr., judge presiding.

The opinion states the case.

M. J. Fulton and J. M. Turner, for the plaintiff in error.

George B. White and Haskins Hobson, for the defendants in error.

EGGLESTON, J., delivered the opinion of the court.

The plaintiff in error, Louise Knight, an infant sixteen years of age, suing by her next friend, filed a notice of motion for judgment against the defendants in error, Ruth Friend Moore and R. D. Moore, to recover damages arising out of personal injuries claimed by her to have been received due to the negligence of the...