Paph v. Tri-State Hotel Co.

• Decision Date: 08 April 1961
• Docket Number: TRI-STATE,No. 42084,42084
• Citation: 188 Kan. 76,360 P.2d 1055
• Parties: Joyce PAPH, Appellant, v.HOTEL CO., Inc., Appellee.
• Court: Kansas Supreme Court

Page 1055

360 P.2d 1055

188 Kan. 76

Joyce PAPH, Appellant, v. TRI-STATE HOTEL CO., Inc., Appellee.

No. 42084.

Supreme Court of Kansas.

April 8, 1961.

Syllabus by the Court

1. Generally speaking, as applied to negligence cases, the term 'unavoidable accident' excludes and repels the idea of negligence, and refers to one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every person bound to exercise--that is, an occurrence which is not contributed to by the negligent act or omission of either party. In one sense, the term is synonymous with 'mere accident' or 'pure accident,' which imply that the accident was caused by some unforeseen and unavoidable event over which neither party had control. Following Knox v. Barnard, 181 Kan. 943, 317 P.2d 452; Schmid v. Eslick, 181 Kan. 997, 317 P.2d 459; Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P.2d 638; Kreh v. Trinkle, 185 Kan. 329, 343 P.2d 213.

2. Generally speaking, when an accident is caused by negligence there is no room for application of the doctrine of 'unavoidable accident,' even though the accident may have been 'inevitable' or 'unavoidable' at the time of its occurrence, and one is not entitled to the protection of the doctrine if his negligence has created, brought about, or failed to remedy a dangerous condition resulting in a situation where the accident is thus 'inevitable' or 'unavoidable' at the time of its occurrence. In other words, a person is liable for the combined consequences of an 'inevitable' or 'unavoidable' accident and his own negligence. (Following decisions cited in paragraph 1 of the preceding syllabus.)

3. In an action to recover damages for personal injuries alleged to have been received by the plaintiff from a fall in the defendant's coffee shop the record is examined and it is held that, under the confronting facts and circumstances, the trial court erred (1) in submitting the jury an instruction on 'unavoidable accident' over the plaintiff's objection and (2) in overruling the plaintiff's motion for a new trial.

Robert C. Foulston, Wichita, argued the cause, and George B. Powers; Carl T. Smith; John F. Eberhardt; Stuart R. Carter; Malcolm Miller; Robert N. Partridge; Robert M. Siefkin; Richard C. Harris; Gerald Sawatzky; Donald L. Cordes, and Robert L. Howard, Wichita, were with him on the briefs for the appellant.

William Porter, Wichita, argued the cause, and Getto McDonald; William Tinker; Arthur W. Skaer, Jr., Hugh P. Quinn; Alvin D. Herrington; Darrell D. Kellogg, and Richard T. Foster, Wichita, were with him on the briefs for the appellee.

PARKER, Chief Justice.

This was an action to recover damages for personal injuries received by the plaintiff from a fall in a coffee shop. A jury trial resulted in a general verdict and subsequent judgment for the defendant. The plaintiff appeals and brings the case to this court under specifications of error charging that the court committed error in giving an instruction on unavoidable accident over her objection and in overruling her motion for a new trial.

The plaintiff commenced the action on December 6, 1959, against the Tri-State Hotel Co., Inc. and its employee, Eleanor R. Mitchell, as defendants. Just prior to the trial she dismissed as against the employee, leaving the corporation as the only defendant. For that reason no further reference will be made in this opinion to Mrs. Mitchell as a defendant.

No controversial issue respecting the sufficiency of the pleadings exists in this case. However, such pleadings define the issues as joined by the parties prior to the trial and their allegations, so far as material to those questions, should be noted. When reviewed in the manner and for the purpose indicated it may be stated:

The petition alleges that plaintiff was just beginning to sit down in a chair in the coffee shop when defendant's employee, Mrs. Mitchell, negligently pulled the chair away and out from under plaintiff, and thus caused her to fall down on the floor and sustain her injuries. It then charges that defendant was negligent in removing such chair, through its employee; that defendant had not properly instructed its employee; that the defendant employed and retained such employee after it was apparent she was physically incapacitated by reason of impaired vision and that her conduct would cause injury to customers; and that defendant employed incompetent managers and supervisors.

The defendant's answer denies generally all allegations of the petition, charges that if plaintiff was injured her injury was proximately caused by her own negligence, and asserts that the accident was unavoidable.

The reply denies all allegations of the answer which in any way controvert the allegations of the petition.

The facts with respect to the pertinent conditions and circumstances existing just prior to the involved accident, as disclosed by the evidence presented at the trial, are not controverted and may be stated in highly summarized fashion.

On January 3, 1957, the defendant corporation was operating the Broadview Hotel Coffee Shop, located in Wichita. The shop had a capacity of 175 people and during each noon hour it served about 700 to 800 people. In handling these customers the coffee shop had one hostess, Mrs. Mitchell, and ten waitresses. The floor plan of the shop is not clear from the record. However, it appears there were coat racks along the west wall of such shop and tables and chairs, which were uniform in size, throughout the dining room. The tables were approximately three feet square.

At 12 p. m., on the date last above indicated, the plaintiff, accompanied by four other persons, entered the coffee shop for the purpose of having lunch. Mrs. Mitchell the hostess, greeted them and, after ascertaining their desires as to a seating arrangement, led them to a place near the west wall of the coffee shop. Close to this west wall there were two tables, each of which accommodated two people. The hostess pushed these two tables together and moved them to the south in order to place another table next to them. Thereafter she walked to the east where more tables and chairs were located. There she picked up a chair, carried it back, and placed it near the west tables.

Events transpiring after the hostess placed the chair near the two west tables are in dispute as to various particulars. On that account they will be described in a summarized recital of pertinent portions of the testimony of witnesses who testified at the trial.

The plaintiff testified that she and one of her associates, Carl Smith, pushed a table, which was located approximately three feet to the east of the two west tables, along the floor until it was even with the other two tables. She also testified that she then turned around and saw another associate, Mrs. Oatsdean, hanging up her coat; that at the same time, she saw her chair and had touched it with her legs; that thereupon she turned around and put her hands flat on the table and said 'Well, I guess this is real service.'; and that she looked at her chair again as she sat down but the chair was not there and she fell to the floor sustaining certain back injuries, which she described during the course of her testimony.

Plaintiff's associate, Carl Smith, testified that he and the plaintiff pushed a table from the east side and moved it to the west side, a distance of approximately four or five feet; that there was a chair placed in a seating position where the table, which he and plaintiff were moving, was to be; that the plaintiff was backing in on the west side of the table and that he was walking forward on the east side of the table; that at that time the hostess was behind the chair in which the plaintiff was going to sit; and that as they got the table lined up with the other tables, the plaintiff sat down. He further stated 'The chair was there at the time we put the table there. Joyce (plaintiff) sat down and the chair was moved.' He also testified that immediately before the accident occurred the hostess was looking toward the door leading into the coffee shop and that she was not looking at the plaintiff.

The hostess, Mrs. Mitchell, testified as a witness for both the plaintiff and defendant. She conceded that she had a glaucoma condition which affected her close vision but stated she did not think there were occasions when people could walk by her closely without her observing them. She admitted moving the chair behind the plaintiff just before the accident happened and in explanation of her action said: 'She (plaintiff) was backing into position carrying the table, and the chair was in position. I realized she might fall and hurt herself so I pulled the chair back when she was two or three feet from the table. I didn't see her look around and I was looking at her all the time.' Mrs. Mitchell also testified that when the plaintiff first looked back, which was at the time Mr. Smith and plaintiff commenced to move the table, plaintiff was seven or eight feet from the place where she sat down; that she stood watching plaintiff, who was moving fast, as she came back; and that when she reached the approximate place where the chair had been setting, plaintiff 'set the table down and sat down all in one movement.'

Edward H. McLeod, manager of the Broadview Hotel, testified that he had seen the entire accident and in a general way corrobated Mrs. Mitchell's testimony.

At the close of all the evidence the trial court gave the jury full and complete instructions.

It suffices to say, without further reference thereto, appropriate instructions, to which no objections were made, were given with regard to the evidence relating to negligence on the part of each of the parties.

In addition to the instructions just mentioned the court, over the objection of counsel for plaintiff, gave the jury the following instruction. It...