McMahon v. Regis Hotel Co.
| Decision Date | 22 November 1946 |
| Docket Number | 32072. |
| Citation | 25 N.W.2d 24,147 Neb. 751 |
| Parties | McMAHON v. REGIS HOTEL CO. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A latent defect in hotel furniture in a guest room is one which is concealed, and an incident of ordinary wear, and so developed as to render discovery impossible in the exercise of ordinary and reasonable inspection and care.
2. The law imposes a duty on an innkeeper to furnish safe premises to his guests, and to provide the customary articles of furniture, which may be used by them in the ordinary and reasonable way, without danger.
3. The duties and liabilities of an innkeeper are not those of an insurer, and extend only to the exercise of reasonable care, which must be determined from the circumstances of each case.
4. A hotel must be kept reasonably safe for all guests, but the proprietor of a hotel is not an insurer against accidents.
5. A guest, who seeks to recover damages from an innkeeper for personal injuries accidentally caused by the breaking of a piece of furniture, has the burden of establishing that the innkeeper negligently failed to exercise ordinary and reasonable care in relation thereto.
Kennedy Holland, DeLacy & Svoboda and L. J. Tierney, all of Omaha, for appellant.
Edward T. Hayes, Joseph M. Lovely and Emmet S. Brumbaugh, all of Omaha, for appellee.
Heard before SIMMONS, C. J., PAINE, MESSMORE, YEAGER, CHAPPELL, and WENKE JJ., and POLLOCK, District Judge.
This is an action for damages for personal injuries sustained by a hotel guest in a fall from a small bench in her room, from which accident she suffered serious injuries. The jury returned a verdict for $7,500, for which amount a judgment was at once entered by the trial judge. Motion for a new trial being overruled, defendant appealed.
The record discloses that the plaintiff, Kathryn McMahon, was 68 years old at the time of the trial, weighed 145 pounds, was five feet four inches tall, and had been a telegraph operator in the employ of the Western Union for 42 years, and at the time of the injury she was drawing a salary of $160 a month, but was drawing more at the time of the trial. Her hours of work were from 8:00 a.m. to 4:30 p.m., and she was off all day Sundays and afternoon on Saturdays. The office where she worked was at Fourteenth and Farnam Streets, Omaha in the W. O. W. Building, and the Regis Hotel was located on Sixteenth Street, between Farnam and Harney.
She rented a room at the Regis Hotel one fall and the following April she moved out to a room in the residence section for the summer but in the fall of that year she moved back to the Regis Hotel and was given room No. 313, and had lived there continuously for the last five or six years. Her room was furnished with two upholstered chairs, a dresser, a couch or day bed, a bench, and writing table. She has visited in other rooms in the same hotel and they furnish a similar bench to the one introduced in evidence. It is a substantial bench, eighteen inches high, standing on four legs, having four 1-inch by 3-inch pieces of wood making the frame, the top of the bench being made up of four strong slats 2 1/2 inches wide, and 17 1/2 inches long. The dimensions of the top of this bench are 14 inches by 20 inches in size. There are no nails or screws in sight, but the parts appear to be fastened together by dowel pins, or mortised, which are then glued firmly together.
Plaintiff usually used this bench to sit on at the desk, as it was more convenient than the upholstered chairs. Later on she brought two upholstered chairs, one a rocker, down from her sister's home and had the hotel take out its two chairs. It was impossible to take the chairs into the closet to stand on to reach the shelf, and she always used this bench for that purpose. When she first moved into the room the closet had one shelf in it, about six feet from the floor, and later they put in another shelf for her, which was about a foot higher. She had to use the bench to reach her hats or clothing on either shelf.
The accident occurred on Sunday, January 16, 1944, at about 10:30 in the morning. She had returned from church and took this bench into the closet to get a hat from the back of the lower shelf. She stepped up on the bench with both feet, and was standing about in the middle of it when there was a cracking sound, the bench broke, and threw the plaintiff to the floor. She laid on the floor for about five minutes, then managed to crawl to the couch, and called her brother, Jack McMahon, from her telephone at the head of the bed, and he came with her niece. She testified that she was suffering terrible pain in her back. A doctor was called and taped her up, and she was taken to the hospital in an ambulance, where she remained five days, suffering pain all the time. X-rays were taken, she was bandaged, and had heat applications. She was then taken to her sister's home. She was under treatment of the doctor for two weeks at her sister's home, then returned to the Regis Hotel, but was not able to work for another week.
On cross-examination she testified that, as she was going out in the afternoon, she was getting a hat down from the shelf; that the bench was partly in the closet and partly outside; that she stepped on it in the center, and when she put her foot on the bench it seemed all right, but when she had put both feet on and started to reach for her hat she heard it creak and started to get down. She fell outside of the closet on her back, but did not hit her head. She said the bench seemed perfectly solid. She detected nothing wrong; it was always solid.
Dr. E. A. Connolly is a Union Pacific surgeon, and testified that he had known the plaintiff for 25 years. He was called to her room at the Regis Hotel, and ordered her sent to St. Catherine's Hospital, where X-rays were taken. She had a compression fracture of the third lumbar vertebra. The vertebrae had 'jackknifed,' one vertebra being squeezed about half its normal size. In addition to the injury to the bone, she had injuries to the muscles and nerves and blood vessels. Her condition is permanent, and there will be a new bone formation, in which three of the lumbar vertebrae will be grown together.
Katherine Lester testified that she was the housekeeper at the Regis Hotel. She was sent to plaintiff's room after the accident by the manager. The witness took the broken bench out of the room. It was taken to the carpenter shop and was fixed the next day. She denied that she made the statement at that time, She said there was no other furniture to stand on in the room except this bench, which she used for a desk chair. The bench in question was a grip bench, and the break was a new break. She testified, 'If it had been an old break it would have been dirty.' Only one leg was broken.
John J McMahon is in the wholesale business of selling laundry and dry cleaning supplies, and is 65 years of age. He said the hotel room was about 15 feet long by eight or ten feet wide, with space out for a closet and bathroom. When he arrived at the hotel his sister was on the day bed and seemed to be in great pain. He called the doctor. He examined the bench and found that two wood dowel pins that connect the board at the end with the legs on one side were broken, and on the other side one of the dowel pins was broken and the other was pulled out. One showed a fresh break, because it had splinters, and one was soiled from age. To look at the bench one would not know it was broken. He testified that the housekeeper looked at it...
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