Morten Inv. Co. v. Jordan

• Decision Date: 21 January 1933
• Docket Number: No. 11093.,11093.
• Citation: 57 S.W.2d 887
• Parties: MORTEN INV. CO. v. JORDAN.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

57 S.W.2d 887

MORTEN INV. CO. v. JORDAN.^*

No. 11093.

Court of Civil Appeals of Texas. Dallas.

January 21, 1933.

Rehearing Denied March 11, 1933.

Appeal from District Court, Dallas County; W. M. Taylor, Judge.

Suit by Lucille Jordan against the Morten Investment Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Leake, Henry, Wozencraft & Frank, and Harold H. Young, all of Dallas, for appellant.

J. L. Lipscomb and McBride, O'Donnell & Hamilton, all of Dallas, for appellee.

BOND, Justice.

Lucille Jordan, appellee, instituted this suit in a district court of Dallas county, Tex., against appellant, Morten Investment Company, a corporation, owning and operating the Jefferson Hotel in the city of Dallas, to recover damages for injuries alleged to have been sustained by her while she was a paid guest of the hotel.

We refer to the parties as they were designated in the court below.

Plaintiff alleges in her petition that, on the occasion of her injury, she was a guest of the Jefferson Hotel and sustained the injuries as the result of a fall upon and down a dark and dangerous stairway; that she was a student in a play-production school then being conducted by the University Production Company on the thirteenth floor of the hotel, and the room assigned to her by the management of the hotel was on the twelfth floor, being so assigned to her in order that she might be conveniently located to her classroom. The status of innkeeper and paid guest was established between plaintiff and defendant.

That defendant maintained, near an elevator, a stairway connecting the twelfth and thirteenth floors. The steps were slick and smooth, without any corrugation, carpets, mats, or anything to insure good footing, and that the stairway was steep and winding, without railing, banister, or grip on the right side going down to afford support to any one descending the stairway. The stairway was dark, although equipped for lighting.

That, at or about 7:45 p. m. on August 11, 1930, plaintiff intended to descend from the thirteenth floor to the twelfth floor to go to her room, and she proceeded by way of the stairway; it being more expeditious to go that way rather than to wait for the elevator. The elevator service had been bad during all of the time she had been a guest at the hotel, and it was customary for the plaintiff, as well as the other guests, to use the stairway to go to and fro from the twelfth and thirteenth floors. It was quicker to descend by the stairway than to wait for the elevator.

As she entered the stairway, the lights from the thirteenth floor illuminated the first four or five steps thereof, and plaintiff, believing that the entire stairway was then lighted, attempted to descend. It had always been lighted after dark, but on this occasion the lights had not been turned on. The stairway was dark, except the top steps, and on account of which plaintiff could not see her footing, which was necessary to descend this stairway; it being very high pitched, slick and smooth, without corrugation, carpets, mats, railing, banister, or grip on the right side on descending.

That by reason of its unlighted condition, its steep pitch, the manner in which the steps were built, the failure to provide a handrail or banister, and the failure to provide corrugation, carpets, or mats to insure good foothold, was negligence on the part of the defendant, and proximately caused her injuries.

Defendant answered by a general demurrer and general denial and special answer, setting out that ample elevator service was provided in said building; that plaintiff well knew that said elevator service was provided and in operation; that notwithstanding the existence of such elevator service, the plaintiff voluntarily elected to descend from the thirteenth floor to the twelfth floor by way of the circular staircase, which was necessarily narrow and steep and not as desirable a way to descend as was the elevator, all of which was known or should have been known by plaintiff. That the plaintiff was well acquainted with all of the surroundings; she had used said staircase a number of times and on repeated occasions prior to her injury; that the stairway was in no respect different at the time of the alleged injury to what it was at the other times the plaintiff had used said stairway and that all of the conditions, claimed by her to have existed in connection with or surrounding the said stairway, were perfectly obvious to the plaintiff, and were well known to her or should have been fully known to her by the exercise of the slightest degree of care. That the plaintiff voluntarily assumed all of such dangers and the result thereof in descending said stairway. That the plaintiff was guilty of contributory negligence in failing to exercise the care of an ordinarily prudent person for her own safety in making use of said stairway instead of using the elevator service provided for that purpose.

Plaintiff denied defendant's allegations that the stairway was, at the time of her injury, in no respect different in its condition than it was at other times, as on previous occasions it had been lighted. She denied the assumed risk charge, pleading that she was a guest, to whom defendant owed the duty of furnishing safe premises. Also denied contributory negligence, as alleged by defendant.

Plaintiff's petition is silent as to any latent defects in the steps or stairway, or as to the manner of their construction or maintenance, except that the hallway was dark when it should have been light at the time she attempted to descend, thereby and on account of which she tripped, slipped, and fell, resulting in her injuries.

The issues were clearly joined by the pleadings and, at the close of plaintiff's testimony, defendant presented a motion for instructed verdict, which motion was overruled and the case submitted to a jury on special issues.

The jury found, in response to the special issues, that the plaintiff sustained injuries at the time and on the occasion in question; that, at such time and on such occasion, defendant failed to have the stairway lighted; that such failure was negligence, proximately causing plaintiff's injury; and found for plaintiff in the sum of $4,100. The jury further found that her injury was not an unavoidable accident, and that she did not fail to exercise ordinary care for her own safety in using the stairway in its unlighted condition; and that defendant owned and operated the Jefferson Hotel on the occasion of the injury.

At the close of plaintiff's evidence, and again at the close of the whole case, the defendant requested the trial court to direct verdict in its favor, which request was denied. It has, in due time and order, perfected an appeal and assigned error. Its proposition under the assignment is: "In a suit by a guest of a hotel against the hotel for injuries received by slipping or falling on steps with which she was familiar, she having walked up and down the steps seven or eight times a day for seven days, the plaintiff's testimony being that she slipped and fell about the fourth or fifth step, and no showing having been made that there was anything upon the steps that had not been upon them when she previously used the steps, the plaintiff is guilty of contributory negligence as a matter of law and the defendant is entitled to an instructed verdict."

We approach this assignment with an appreciation of the authorities of many jurisdictions, that a grave doubt exists, under facts as in this case, as to whether plaintiff is guilty of contributory negligence as a matter of law. In our own jurisdiction the courts are uniform in holding that, to make such issue a question of law, the testimony must not only be uncontradicted, but must be so conclusive that reasonable minds cannot differ as to its effect. Stooksbury v. Swan, 85 Tex. 563, 22 S. W. 963.

The substantial testimony in the instant case is that plaintiff, who lives in Lubbock, came to Dallas on August 3, 1930, to attend a play-production school, which was located on the thirteenth floor of the Jefferson Hotel, which hotel was owned and operated by defendant. She was assigned to a room on the twelfth floor. Two elevators ran to that floor, and to the thirteenth floor, and the stairway adjoined the elevator shaft. The pitch of the stairway was steep, they were circular or winding, and the steps were wide enough for a footing on the right side going down, but tapered to a point...