Schwingle v. Kellenberger

• Court: North Carolina Supreme Court
• Writing for the Court: CLARKSON. Justice
• Citation: Schwingle v. Kellenberger, 217 N.C. 577, 8 S.E.2D 918 (N.C. 1940)
• Decision Date: 22 May 1940
• Docket Number: No. 673.,673.
• Parties: SCHWINGLE . v. KELLENBERGER et al.

8 S.E.2d 918

217 N.C. 577

SCHWINGLE .

v.KELLENBERGER et al.

No. 673.

Supreme Court of North Carolina.

May 22, 1940.

Appeal from Superior Court, Guilford County; J. A. Rousseau, Judge.

Action by J. C. Schwingle against C. D. Kellenberger and another for injuries. From a judgment as of nonsuit, plaintiff appeals.

Affirmed.

This is an action for actionable negligence brought by plaintiff against defendants alleging damage. The defendants denied negligence and set up the plea of contributory negligence. The defendants are the owners of certain premises in Greensboro, N. C, which were known as "Shady Lawn Inn" and open to tourists. The plaintiff and his wife went to the Inn about 7:00 o'clock P. M, on Sunday, March 26, 1939, "just becoming twilight", and were received as guests and assigned a room on the second floor. About two hours later plaintiff started down to the first floor to register, using the same stairway which he had ascended. The stairway was winding, with three landings and had a banister or railing. Plaintiff looked at the steps and observed them as he went up to his room, but did not observe anything abnormal about the type of construction of the stair-steps. He observed that the tread of the stairs was bare and that it was an ordinary stairway found in dwellings. He did not observe the steps as to whether there was any foreign substance, like trash or dirt, on them. There was a dim light in the hall and as plaintiff came down the stairs there was an electric light in front of him—not many inches above his head. Plaintiff weighed 200 to 210 pounds. He wore glasses and for 17 years had suffered with phlebitis in the calf of his left leg. He wore high shoes with rubber heels.

On plaintiff's direct examination, he testified, in part: "When I had made two or three or four steps down the staircase, my right foot slipped on the tread of the stairs and it shot forward at the same time my body shot forward, and before I could get my left foot firmly planted on the stairs, my left foot had slipped over the edge of the steps, catching the front edge of my heel on my shoe thereby throwing the weight of my entire body on my left leg which was underneath me. I fell on my left leg. When I fell, my left hand struck the surface of the stair steps. My right hand was still gripping the railing. When my left hand struck the surface of the stair steps, I felt a slippery sensation— I don't know what it was but that was on my left hand, which was the only one touching the stairs as I tried to lift myself from this doubled-up position."

On cross-examination, plaintiff testified, in part: "When I got to the top of the stairs, that is, before I stepped off of the hall floor level of the upstairs of the house, I observed that my own shadow was in front of me. I would say it affected my clear sight of the steps. Before I touched a single step going downstairs, I observed that in front of me and knew that my own shadow interfered with my ability to see the steps in front of me. There was nothing I could do about it and I did nothing about it. I then continued to walk in the dark. I attempted to walk downward, down the stairway that I could not see. * * * The lights in the reception room downstairs were lighted. I testified that the lights from the reception room sifted through the banister railing and cast some light on the stairs. I had gone three or four steps before I fell. I cannot be more positive than that; I know I fell on...