Milliken v. Trianon Hotel Co.

• Decision Date: 03 December 1962
• Docket Number: No. 23649,23649
• Citation: 364 S.W.2d 71
• Parties: Helen MILLIKEN, Appellant, v. TRIANON HOTEL COMPANY, Respondent.
• Court: Missouri Court of Appeals

Page 71

364 S.W.2d 71

Helen MILLIKEN, Appellant, v. TRIANON HOTEL COMPANY, Respondent.

No. 23649.

Kansas City Court of Appeals, Missouri.

Dec. 3, 1962.

Kranitz & Franitz, St. Joseph, Jay Macey Rosenblum, Kansas City, for appellant.

John R. Gibson, F. Burck Bailey, Morrison, Hecker, Cozad & Morrison, Kansas City, for respondent.

HUNTER, Presiding Judge.

This is an appeal by plaintiff, Helen Milliken, from the judgment of the trial court setting aside her verdict and judgment for $13,185 obtained against defendant, Trianon Hotel Company, and granting a new trial. The numerous contentions of error on this appeal include a challenge of the correctness of plaintiff's verdict directing instruction and the sufficiency of the evidence to make a submissible case.

In her petition plaintiff alleged, among other things, that on January 3, 1959, about 3:00 a.m. while in the process of leaving the Muehlebach Hotel she 'made her way down the stairs toward the main lobby portion of the hotel, and in doing so, stepped upon a soapy and/or wet slippery substance on or about the second step of the top flight of the stairs, when and where * * * she was caused to slip, slide and violently fall * * *'--all due to the alleged negligence of the defendant in permitting such a covering of soap and/or water to be and remain on the stairway and the adjoining floor causing them to be dangerous and unsafe.

At the jury trial plaintiff testified that she, her friend, Mrs. Hyde, and a male acquaintance, entered the hotel, located in downtown Kansas City and owned by defendant, to visit another friend, Mr. William Roundtree, who was staying there. The three of them entered the lobby portion of the hotel from its Coffee Shop, where they had dined. They proceeded through the lobby, west through a wide hall, and on up the steps in question to an elevator which they rode to Mr. Roundtree's floor. At that time plaintiff observed nothing unusual going on.

Some fifteen or twenty minutes later she, Mrs. Hyde, and their acquaintance left Mr. Roundtree's room and proceeded to leave the hotel. They descended in the elevator, proceeded easterly and approached the mentioned stairs which lay in an east-west direction. Plaintiff was ahead, with Mrs. Hyde and the man behind her in that order. There were two men in work-uniform clothes there by the south wall, both either on the top landing or one on the steps and the other on the top landing. Near them on the far south side were a bucket and mop. The men were blocking plaintiff's way. Mrs. Hyde said, "They are working here', she said, 'We will take the other side".

We refer to pertinent portions of plaintiff's testimony describing her fall. 'There is only one way to return, we came down on the elevator, turned to our right, and there is two series of steps--it has a divided rail in the center. * * * they have a blond, light brown surface to them, rather mottled. * * * it's divided by three railings. * * * The far railing is on the south side, then there is a center railing dividing the two flights of stairs, and then one on the north side. * * * I took the north railing. * * * I walked up to the steps, took ahold of the railing, and stepped down and just slipped. * * * Q. Do you know what caused you to slip? * * * A. The steps were wet'.

After plaintiff's fall down the flight of steps Mrs. Hyde spoke, "Why look' she said, 'the steps are wet', and I actually had to look and keep looking before I realized they were wet. The stone is--whatever the surface or composition of the floor is, it is of such a color that you hardly see it, and the lights are so bright in there that there is almost a glare. * * * I had to look intently before I could see the wetness there because the glare is so bright in there and the coloring of the floor is so neutral like that it is very difficult for you to see. * * * I could see wetness. * * * it was wet, there was no doubt about it.'- Plaintiff described the condition of her clothes as a result of her fall. 'Well, they were dirty and they were black, and they had some white streaks over them, and smudges of white. * * * There was a wetness there (on the clothes) and there was some white streaks, and white looking places over the black material. * * * some soil, possibly could have been dirt, and it brushed off, but the white streaks wouldn't all come off. * * * (These streaks and whiteness were) on both the coat and dress. * * * On the underclothing I really don't know. It was torn and soiled, and I threw it away.'

Mrs. Hyde's testimony in general corroborated plaintiff's version of the occurrence. She stated plaintiff '* * * put her hand on the rail and took about the first step and her foot slipped out from underneath her and she tried to hold on to the rail, and she finally just fell on the steps. * * * I said, 'Well, no wonder you fell, they are wet'. * * * They were just wet-like all over. * * * All the steps. * * * She had like mud and a sort of a white substance on her clothing. Q. * * * (were the clothes wet?) A. Oh, yes, definitely. You could see it was on her dress and coat. * * * a good sized area.'

As a result of the fall plaintiff's foot was broken, and she suffered other injuries.

Challenged verdict directing Instruction Number One given on behalf of plaintiff reads:

'The Court instructs the jury that if you find and believe from the evidence that on January 3rd, 1959, at approximately 3:00 to 3:30 a. m., plaintiff was a customer or guest, either or both, of defendant's Hotel Muehlebach, it then became the duty of the defendant to exercise ordinary care to keep the premises, including the Wyandotte Street lobby, and the stairs leading from said Wyandotte Street lobby and entrance, to the central, main lobby of the hotel, in a reasonably safe condition for use of defendant's customers and guests.

'The Court further instructs the jury that if you find and believe from the evidence that on the occasion mentioned, the defendant's agents had mopped or washed a portion of the north half of the first flight of stairs immediately below the level of the Wyandotte Street lobby, which portion plaintiff was intending to descend, leaving a wet and slipperly substance on said stairs, and that the premises, by reason of the presence of said wet and slippery substance on said stairs, if any, were not reasonably safe, and that plaintiff was not warned of the presence of said substance, if you so find, and if you further find that defendant, by and through its agents, servants and employees, by the exercise of ordinary care knew, or could have known, of the presence of said wet and slippery substance in time to have removed or remedied the same or to have given plaintiff warning of the presence of said wet and slippery substance, but that the defendant failed to have done so, if you so find, and if you further find that such failure, if any, was negligence and that plaintiff stepped down upon portions of the wet and slippery stairs and was caused to fall and be injured as the direct result of such negligence, if any, then the Court instructs the jury that plaintiff is entitled to recover and your verdict must be in favor of the plaintiff and against the defendant, unless you find the plaintiff guilty of contributory negligence as submitted in other instructions herein.'

It is defendant's contention that the trial court properly granted a new trial because Instruction Number One (a) contained in its first paragraph an incomplete and erroneous abstract statement of the law for it ignored defendant's duty to warn only of dangers and conditions that are not...