Rudolph v. Elder

• Decision Date: 09 October 1939
• Docket Number: 14313.
• Citation: 95 P.2d 827,105 Colo. 105
• Parties: RUDOLPH et al. v. ELDER.
• Court: Colorado Supreme Court

95 P.2d 827

105 Colo. 105

RUDOLPH et al. v. ELDER.

No. 14313.

Supreme Court of Colorado

October 9, 1939

In Department.

Error to District Court City and County of Denver; George F Dunklee, Judge.

Action by Elizabeth Elder against D. E. Rudolph and another to recover damages for personal injuries. Judgment for plaintiff, and defendants bring error.

Affirmed.

Lowell White and Howard Roepnack, both of Denver for plaintiffs in error.

Grant Shafroth & Toll and Douglas McHendrie, all of Denver, for defendant in error.

KNOUS Justice.

Herein reference will be made to the parties as they appeared in the lower court where the defendant in error was plaintiff and plaintiffs in error were defendants. A trial by jury resulted in a recovery of judgment in favor of plaintiff against defendants in the sum of $2,439.28 as damages for personal injuries allegedly resulting from the negligence of the defendants, who here seek a review of the judgment. At the time of the accident involved, defendants were the lessees and operators of the Adams Hotel in Denver and plaintiff was a guest therein. The record discloses that plaintiff sustained the injuries of which she complains as the result of a fall into a freight elevator shaft adjacent to the rear entryway to the hotel. This entryway is about fifteen feet long and six feet wide and leads directly from the alley in the rear of the hotel to the freight elevator. At the alley end thereof is a door which at the time of the accident was open, and at the inner end is another door leading to the elevator shaft. Toward the rear of the passage, and to the left as one enters, is a door permitting access to the main lobby of the hotel via what is known as the Dutch Grill room. The complaint charged: 'That the defendants were negligent in the maintenance of the said passageway and of the said elevator shaft and the door opening into said shaft, in that the passageway was dark and the objects therein indistinct and not easily discernible to one entering the passageway from the outside; and in that there was no adequate and plainly visible sign on said door opening into the elevator shaft giving notice or warning that it was an elevator door opening into said shaft; and in that said door was not so maintained that it could not be opened from the outside when the elevator was not resting at the floor level of the said passageway.' By a second cause of action plaintiff alleged general negligence on the part of defendants. The answer denied the allegations of negligence as well as certain other matters contained in the complaint which hereinafter will be mentioned, and as a further defense charged that plaintiff was guilty of contributory negligence. Defendants do not seriously question the extent of plaintiff's injury nor claim that the verdict was excessive, but primarily seek reversal upon the grounds that the evidence of defendants' alleged negligence was insufficient to justify the submission of the case to the jury and that the testimony of plaintiff, taken in connection with what they claim are the physical facts, sufficiently establishes her contributory negligence. Incidental to these contentions and for the most part corollary thereto, error is assigned to the admission and rejection of certain evidence; to the refusal of the court to give requested instructions and to some of those given to the jury.

Plaintiff testified that shortly after her arrival at the hotel, one of the bellboys--whom she identified at the trial as Earl Turner, son of one of the defendants--during the time he was removing baggage from the auto in which she had arrived, advised her to store her car in a near-by independently operated garage, saying: 'Leave your car in the garage and come in the back entrance which is across the alley from the garage. There is a door there leading into the Dutch Grill of the hotel. Walk across the alley, go into the door, and you will find it will take you right into the lobby.' Plaintiff placed her car in the garage indicated, but because, as she testified, it was very dark, did not then attempt to use the suggested route but returned to the hotel by going around the block and through the front entrance. About 3 o'clock the next afternoon plaintiff again was in this garage preparing to drive her car out and around in front of the hotel, when one of the garage employees suggested that she could proceed up to the alley and return to the hotel by the back entrance above mentioned, directing that she take the first door to the left after entering the rear passageway. Shortly thereafter plaintiff crossed the alley and entered the passageway to the hotel. On direct examination she testified concerning the immediately succeeding events as follows: 'I stepped into the passageway, it was very dim in the passageway, very, and I looked for the door on the left, but there was none, I saw none, I saw there a piece of wood painted black, I though that must be what was meant, and I put my hand out to find out if there was a knob, a handle or something to take hold of, but there was nothing on the door, and I pushed it and nothing happened, and I thought it was a panel of some sort, it is not a door, and right ahead of me there was a door, so I walked over to that and reached out my left hand, opened it very easily, reached out with my right hand, because I thought possibly there was another door behind it, that this one I was opening must be a panel door of some sort, and I reached out, and the next thing I knew I was falling through darkness.' The door she opened, as may be apprehended from what has been said, was the door which led into the elevator shaft.

In the interest of brevity and for better understanding, we trust, we pause in our recital of the evidence at this point to consider certain contentions of the defendants which are determinative of the degree of care as to the plaintiff's safety legally imposed upon them. They assert that in using the rear entry way plaintiff was a trespasser or, at most, a mere licensee, who was obliged to take the premises as she found them and that defendants owed her no duty except that of refraining from active negligence rendering the premises dangerous. We understand it to be unquestioned as a matter of law that a hotel keeper's duty to keep his premises reasonable safe for the use of his patrons extends to all portions of the premises to which a guest may be reasonably expected to go. 14 R.C.L. p. 508, § 14; 32 C.J., pp. 562, 563, § 70. In urging this point we feel defendants overlook the fact that at all times herein involved the plaintiff was a guest of the hotel and that, as we have seen, legally her status as such existed as to all parts of the hotel in which her presence might reasonably be anticipated by the defendants. The resolution of this matter, involving, as it does, questions of fact, was solely for the jury, and obviously the crucial point is whether, under the circumstances disclosed by the evidence, defendants might have reasonably expected plaintiff, as a guest of the hotel, to use this rear entryway. This factual situation renders impertinent the consideration of many of the questions, argued at length by defendants, which ordinarily are involved in determining whether a strictly non-guest injured on hotel premises technically is a trespasser, licensee or invitee. For this reason such authorities as Hooker v. Routt Realty Co., 102 Colo. 8, 76 P.2d 431, and similar cases are wholly inapplicable to the case at bar.

As has been mentioned plaintiff testified to an invitation by a bellboy of the hotel. The inferential denial of the conversation which plaintiff testifies she had with the boy did no more than create a conflict in evidence upon this issue, properly to be determined by the jury, which likewise, under the evidence presented, was the sole arbiter of his authority or lack of authority in offering the directions mentioned. In addition to the testimony of plaintiff relating to the alleged express invitation, several witnesses stated that, with the knowledge of the defendants, this passageway had been regularly and freely used by guests of the hotel for some years in going to and from the garage in question. Notwithstanding defendants' objection thereto this evidence clearly was admissible to show a custom and practice from which it well could be inferred that defendants reasonably might expect other guests to so use this portion of the hotel. It is well established that an invitation to a customer or patron to go to certain parts of business premises may arise by implication from a known customary use of the...