Maher v. Voss

• Citation: 9 Terry 45,48 Del. 45,98 A.2d 499
• Parties: , 48 Del. 45 MAHER v. VOSS et al. (two cases).
• Decision Date: 11 June 1953
• Court: United States State Supreme Court of Delaware

Page 499

98 A.2d 499

9 Terry 45, 48 Del. 45

MAHER v. VOSS et al. (two cases).

Supreme Court of Delaware.

June 11, 1953.

Paul R. Rinard and William E. Taylor, Jr., of Wilmington, for appellants.

Joseph Donald Craven, of Wilmington, for appellees.

SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.

SOUTHERLAND, Chief Justice.

The briefs and argument on this appeal, involving an action to recover damages for negligence, bring before us two questions:

1. Did the evidence justify a finding of contributory negligence as a matter of law?

2. Was there sufficient evidence to go to the jury on the issue of defendants' negligence?

We shall refer to plaintiffs below, appellants, as 'plaintiffs'; to defendants below, appellees, as 'defendants'; and to Mrs. Anne Maher as 'plaintiff'.

Before taking up the merits, a motion to dismiss the appeal requires consideration. Final judgment for the defendants was entered on January 2, 1952. A motion for a new trial was denied on August 30, 1952. A praecipe for writ of error was filed February 13, 1953. In accordance with Rule 5(4) of this Court the praecipe undertook to specify the judgment appealed from. It is described as the 'final judgment * * * dated 30th of August, 1952.' On its face, the praecipe is ambiguous. Defendants, citing Trowell v. Diamond Supply Co., Del., 91 A.2d 797, and French v. Jeffries, 7 Cir., 161 F.2d 97, say that the praecipe should be construed as an appeal from the motion denying a new trial and that the appeal should be dismissed, since no question of abuse of discretion is presented. In support of the motion defendants point to the fact that plaintiffs' appendix fails to include a copy of the judgment of January 2, 1952, but does include a copy of the order of August 30, 1952. We think this a case of patent ambiguity in the praecipe which we should resolve in favor of the plaintiffs. As against the inference to be drawn from the appendix, there is the statement in the brief that the appeal is from the final judgment of January 2, 1952. As between the two inferences, that supporting the right of appeal is to be favored. We treat the matter as one of mistake in the date.

Defendants suggest that the final judgment is not before us, because not contained in the 'abstract' of the record (i. e., the appendix to plaintiffs' brief). This is a misconception of the function of the appendix. Cases in this Court are not heard upon an abstract, but upon the original record sent up from the lower court. Rule 7(1). The record shows the entry of final judgment on January 2, 1952.

The motion to dismiss is denied, and we turn to the merits.

A brief summary of the circumstances which led to this suit, and of plaintiffs' evidence touching the issue of contributory negligence, is as follows:

Plaintiff was invited by Barbara W. Voss, one of the defendants, to attend a meeting of the Democratic Women of New Castle County to be held in the home of Dr. and Mrs. Voss in Wilmington on March 30, 1950. Plaintiff accepted the invitation and arrived at the house about eight o'clock in the evening. At least four other guests, Miss Grace Aiken, Mrs. Mary Morris, Miss Brulatour and Mrs. Cresswell, also attended the meeting. As the guests arrived Mrs. Voss received them at the threshold of the living room, to which the front door apparently gave immediate access, and took the coats and wraps and disposed of them in the dining room. The dining room adjoined the living room immediately on the rear and was divided from it by a wall in which was a large opening, lacking any door.

The business of the meeting having been finished, the guests made ready to depart. Plaintiff went into the dining room to get her coat and found it hanging on a hook immediately inside what appeared to her to be a coat closet. She then volunteered to get the coat of another guest, Mrs. Morris, and returned to the supposed closet for that purpose. The 'closet' was in fact a landing at the top of a stairway leading to the basement. Its front was lighted dimly from lights in the ceiling of the dining room, but the light was insufficient to illuminate the rear. Coats were hanging on both sides of the closet. She stepped toward the rear in an attempt to find Mrs. Morris' coat and fell headlong down the stairway and suffered severe injuries.

Thereafter plaintiff and her husband each brought a suit against the defendants Dr. and Mrs. Voss, to recover damages. The complaints alleged that the place where the coats and wraps had been hung by Mrs. Voss was to all outward appearances a clothes closet in the dining room but in fact was an open unlighted cellarway; that plaintiff had the right to rely on the apparent use of the opening as a coat closet; and that defendants were grossly negligent in failing to warn her of the hazard and should have known, or should have had reasonable cause to believe, that a guest going to the closet might be entrapped by the appearance of the opening and might suffer injury.

A motion to dismiss the complaints was brought on for hearing and was denied. Del.Super., 84 A.2d 527.

The case came on for trial. At the conclusion of plaintiffs' evidence defendants moved for a directed verdict on three grounds, the third of which was that plaintiff was as a matter of law guilty of contributory negligence.

After argument the court determined that as a matter of law Mrs. Mather was negligent in proceeding to the unlighted portion of the closet and directed a verdict for the defendants.

Plaintiffs appeal, urging that the question of contributory negligence was for the jury. Defendants say the court below was correct in its holding; and also urge that in any event there was no evidence of defendants' negligence sufficient to take the case to the jury, and hence that the judgment should be affirmed.

1. Was Mrs. Maher guilty of contributory negligence as a matter of law?

For our present purpose we shall assume actionable negligence on the part of the defendants. Certain aspects of that question will be examined later.

The evidence touching the issue of contributory negligence may be summarized as follows:

Two or three of the guests went to the dining room to get their coats. Miss Aiken opened the 'closet' door, 'stepped in about two steps and leaned over and got [her] coat' which was in the back on the right. Mrs. Maher went to the opening and saw her coat hanging just inside the door. She took her coat, put it on a chair in the dining room, and then volunteered to get Mrs. Morris' coat, Mrs. Morris being engaged in calling a taxicab for the use of herself and Mrs. Maher. Mrs. Maher's testimony as to what then happened is as follows:

'Well, immediately in front of the closet the first cost--well, it was the first coat on this side. There was a coat hanging that seemed to have black fur on it. I said to Mrs. Morris, 'Does your coat have black fur on it?' She said 'No. No, it's a plain gray coat.' I stepped further into the closet to go through the coats to see which was hers, and as I stepped further in--well, I just went headlong into void.'

She further testified that the space into which she fell was black. On cross-examination she further testified as follows:

'In addition to the lack of light, I believe that you testified there was very little light in the closet? Yes.

'Was your vision also obscured by coats hanging on both sides of that closet? Were there coats hanging on both sides of the closet? Yes.

'And because of the lack of light and the obscurity of your vision was it necessary for you to kind of push these coats out of the way and feel your way into the closet to feel for Mrs. Morris' coat? I pushed them aside and walked in further.

'Did you ever find out how far back in the closet Mary Morris' coat was? No, I didn't.'

Asked by the court whether she remembered how wide or how deep the platform is, she replied:

'No, I don't, sir. I just know that I took a few steps into it to get Mary's coat.'

There is no evidence of the exact length of the platform extending from the door to the top of the cellar stairs. Miss Aiken's 'two steps' and Mrs. Maher's 'few steps' were, as suggested by plaintiffs' counsel, probably short ones. The inference might be drawn that at least one or more of the coats had been hung in dangerous proximity to the end of the platform.

On the motion for a directed verdict the court below applied the well-settled principle of law derived from the so-called 'step-in-the-dark' cases. A person who comes into an unfamiliar situation, where a condition of darkness renders the use of his eyesight ineffective to define his surroundings, is not justified, in the absence of any special stress of circumstances, in proceeding further, without first finding out where he is going and what may be the obstructions to his safe progress. A violation of that rule is contributory negligence as a matter of law. 1 Shearman and Redfield on Negligence (Rev.Ed.) 320.

The cases supporting this rule are in general those where a person enters a completely dark opening on unfamiliar premises. At all events that is the typical case which calls for a pronouncement by the trial court of contributory negligence as a matter of law. We do not question the soundness of the rule in such a case. The instant case, we think, is different. The opening was dimly lighted, sufficient to disclose that coats had been hung in it and sufficient to identify a coat hanging just inside the door. The rear of the supposed closet appears to have been completely dark.

We think that a jury might reasonably find that the plaintiff, standing safely upon what appeared to be the floor of a closet, was misled by appearances, with some justification, into believing that it was safe to step further. The appearance of the opening, the hanging of the coats, the platform beneath her feet, and the dimness (but not complete absence) of light--all these facts taken together might well lead reasonable...