Tate v. Canary Cottage

• Decision Date: 14 May 1946
• Citation: 302 Ky. 313,194 S.W.2d 663
• Parties: TATE v. CANARY COTTAGE et al.
• Court: Kentucky Court of Appeals

194 S.W.2d 663

302 Ky. 313

TATE v. CANARY COTTAGE et al.

Court of Appeals of Kentucky

May 14, 1946

Appeal from Circuit Court, Jefferson, County, Common Pleas Branch Fourth Division; Eugene Hubbard, Judge.

Action by Vena Tate against the Canary Cottage, etc., and others for injuries sustained when plaintiff fell on stairway and premises in which defendant operated a restaurant in the city of Louisville. From judgment for defendants, plaintiff appeals.

Judgment affirmed.

Guy Shearer, Robert B. Hardison, and Edwin O. Davis all of Louisville, for appellant.

Lee Roy Curtis, of Louisville, for appellees.

VAN SANT, Commissioner.

Appellant filed this action to recover damages for injuries sustained when she fell on a stairway on premises in which appellees operated a restaurant in the City of Louisville. The accident occurred about 8:30 o'clock at night. It is alleged that appellees were negligent in that: (1) The stairs were insufficiently lighted; (2) there was no handrail on the right side of the steps going down, as required by the Building Code of the City of Louisville; and (3) the carpet on the stairs, by reason of its undercushion, projected approximately one inch beyond the step, thus rendering it insecure, causing appellant to fall when her heel caught on the projected portion of the carpet. Under instructions submitting the case upon the question of appellees' negligence in respect to the insufficient light and the absence of a handrail, the jury returned a verdict in favor of appellees. Three grounds are urged for reversal: (1) The Court erred in failing to instruct the jury in respect to appellees' negligence in their alleged failure to maintain the carpet in a safe condition; (2) the Court erred to the prejudice of appellant, in permitting counsel for appellees, upon cross-examination of appellant, to introduce by her matters which had not been touched upon in her direct examination; and (3) the Court erred in giving to the jury an instruction on contributory negligence.

The first complaint may not be entertained by this Court, because appellant did not offer an instruction incorporating that theory of the case, Reed et al. v. Philpot's Adm'r et al., 235 Ky. 429, 31 S.W.2d 709; and did not make the complaint a ground for a new trial in her motion therefor, Chesapeake & O. R. Co. v. Wendt, Ky., 121 S.W. 661.

The question presented in the second ground has been answered fully and adversely to the contention of appellant in Bruton's Adm'r v. Eddington-Griffiths Const. Co Ky., 118 S.W. 1001, 1002, wherein the Court said:

'When the plaintiff introduced Potter the defendant was at liberty on cross-examination to go into new matter and to prove by the witness any facts which he could testify to; * * *.'

There remains the question as to whether the Court erred in instructing the jury on contributory negligence. Appellant fell while descending the stairway. She testified that, a few minutes before, she had ascended the stairway, and that it was in the same condition when the accident occurred as it was when she ascended. She testified that the stairs were so dark when she ascended that she was required to, and did, use the handrail to prevent her from falling. On cross-examination, she testified as follows:

'Q. Now, on the day of this accident in the Canary Cottage you and your cousin first went up the steps? A. That is right.

'Q. And when you went up the steps you held to the handrail on the right side? A. Yes, sir.

'Q. You did that because you saw the steps were dark? A. That is right.

'Q. And she (meaning the cousin) held to the handrail on the right or did she go up alone? A. I don't recall whether she went up back of me or not. I don't recall about that.

'Q. You held on to the handrail? A. I held to the handrail going up.

'Q. The reason you held to the handrail was that the steps were dark? A. That is right.

'Q. Coming down the steps, the steps and lights and everything was in the same condition exactly? A. That is right, they were.

'Q. Just as dark and just as light when you came down as it was when you went up? A. That is right.

'Q. And there was nobody behind you that you know of? A. Not that I recall.

'Q. Or no one in front of you? A. Are you speaking of going up or coming down?

'Q. Coming down? A. There was no one in front of me.

'Q. No one on the steps but you and your cousin? A. Not that I recall.

'Q. You say the steps when you went up and came down were so dark that you could not see them, is that right? A. That is right.

'Q. You had to feel your way with your feet coming down? A. That is right, I did.

'Q. Why didn't you use that handrail there then for people--provided for persons? A. I was walking beside her. I walked on the other side.

'Q. I know, but could you not have walked in front of her? A. I could have.

'Q. And could you not have walked back of her? A. ...