Stein v. Buckingham Realty Co.

• Decision Date: 31 May 1933
• Docket Number: No. 22357.,22357.
• Citation: 60 S.W.2d 712
• Parties: STEIN v. BUCKINGHAM REALTY CO.
• Court: Missouri Court of Appeals

60 S.W.2d 712

STEIN v. BUCKINGHAM REALTY CO.

No. 22357.

St. Louis Court of Appeals. Missouri.

May 31, 1933.

Rehearing Denied June 13, 1933.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be officially published."

Action by Constance Sakell Stein against the Buckingham Realty Company. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded.

Jones, Hocker, Sullivan & Gladney and Ralph T. Finley, all of St. Louis, for appellant.

A. G. Jannopoulo and Milton C. Lauenstein, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff, Constance Sakell Stein, on October 14, 1926, when she fell while descending a flight of stairs in the Buckingham Hotel, located at Kingshighway and West Pine boulevards in the city of St. Louis, and owned and operated by defendant, Buckingham Realty Company. From a verdict and judgment for plaintiff for $3,890, defendant has duly appealed.

The basis of the cause of action, considering the case from the standpoint of its submission to the jury, was that the stairway was slick and slippery and not fit for persons using it, and was not sufficiently illuminated. Each of such elements of alleged negligence was presented to the jury in a separate instruction, conditioned upon a finding of causal connection between the negligence claimed and the resulting injury.

The answer was a general denial, coupled with a plea of contributory negligence; and the case was brought at issue by plaintiff's reply, which was drawn in the conventional form.

Plaintiff, who resides in Brooklyn, was in St. Louis at the time in question in attendance at the wedding of her cousin, and during her stay in the city was registered as a guest in defendant's hotel, being assigned to a room on the second floor. Somewhat after 6 o'clock in the evening she left her room to go downstairs to the reception and dinner, and rang for the elevator at her floor. When the elevator arrived, it was filled to its capacity; and the operator suggested to plaintiff that she walk down the stairway, which is located alongside the elevator shaft.

The stairway is of marble, with steps eight inches in width, and first leads down to the west to a point midway between the two floors, where it makes a circular turn to the right and reverses itself, facing to the east as it comes down into the lobby. At the turn the stairs are fan-shaped, narrowing down at the point of the turn to a width of only three inches. Alongside the right of the stairway as it leads down to the turn is a railing or banister, which ends at the point of the turn, where a pillar or post is stationed. At the left side of the stairway there is nothing but the blank wall.

Plaintiff had never used the stairway before; and as she started down, observing that the stairs were slippery, she walked along the right side, and held on to the railing until she reached the turn, where the railing ended. At that point, instead of stepping over to the left where the stairs retained their normal width, plaintiff attempted to continue on around the pillar at the right side of the stairway, and in using the narrow steps her foot slipped, causing her to fall forward and sustain the injuries for which she has sued.

One of the chief insistences of defendant is that it was error, under the facts in evidence, to submit to the jury, by plaintiff's instruction No. 5, the question of its negligence in permitting the stairway to be slick and slippery and not safe for persons using it. We think this point is well taken.

It was the duty of defendant, as it itself concedes, to have kept its building and premises in a condition reasonably safe for the use of its guests, and of course such duty extended to the maintenance of the stairway in question. Burnison v. Souders, 225 Mo. App. 1159, 35 S.W.(2d) 619; 32 C. J. 562; 14 R. C. L., § 14, p. 508. But defendant was nevertheless not an insurer of plaintiff's safety; and, in determining whether or not a sufficient degree of care was exercised in the particular respect under consideration, its conformity to custom or usage is a proper test to be applied, provided only that the construction of the stairway was not inherently dangerous. In other words, one has the right to rely upon the sufficiency of a structure or contrivance such as is in common use, and which, in the light of the experience obtained by its general use, has been found to answer the purpose for which it was designed and intended. 45 C. J. 706; 20 R. C. L., § 23, p. 30.

Now here, plaintiff's evidence was of one accord that there was no defect in the stairway, and no foreign substance upon the stairs; but rather she predicated her right to a recovery upon the bare fact that the stairs were slick and slippery and not safe for persons using them because of their construction out of marble. However, we cannot shut our eyes to the fact, which every one knows, that stairways in hotels and public buildings, especially of the older types, are frequently made of marble; that, where the stairways turn, the stairs themselves are necessarily of fan-shaped construction; and that stairways so constructed, though they are undoubtedly of a character to require more care in their use than do wooden or carpeted stairways, are yet not inherently dangerous, but have been found...