Viles v. Thunborg

• Decision Date: 25 August 1931
• Docket Number: 23115.
• Citation: 2 P.2d 666,164 Wash. 190
• Parties: VILES et al. v. THUNBORG.
• Court: Washington Supreme Court

2 P.2d 666

164 Wash. 190

VILES et al. v. THUNBORG.

No. 23115.

Supreme Court of Washington

August 25, 1931

Department 2.

Appeal from Superior Court, Spokane County; Charles H. Leavy, Judge.

Action by Myrtle C. Viles and another against Carl O. Thumborg. From a judgment in favor of defendant, notwithstanding the verdict, plaintiffs appeal.

Affirmed.

Powell & Herman, of Spokane, for appellants.

McCarthy & Edge, W. E. Du Puis, and Leo F. Wilson, all of Spokane, for respondent.

BEELER J.

This action was brought to recover damages for personal injuries sustained by the plaintiff Myrtle C. Viles. The cause was tried to the court and jury, and resulted in a verdict in favor of the plaintiffs in the sum of $2,500. The court, however, entered judgment for the defendant notwithstanding the verdict on the theory that Mrs. Viles was contributorily negligent as a matter of law, barring her the right of recovery. From this judgment the plaintiffs have appealed.

The facts essential to be stated are these: The respondent operates a hotel at Spokane, Wash. At about 10 or 10:30 in the forenoon of April 7, 1930, both appellants went to this hotel to visit a Mrs. Bray who occupied a room on the third floor. On reaching this floor, the appellants walked in a southerly direction through and to the end of the main hallway, thence west along another hallway, until they reached the end thereof, and thence south again through a short hallway and into Mrs. Bray's room.

Both of the appellants testified that an electric light, attached to the wall a few feet east of the lavatory entrance, was not burning at the time they passed through the hallway on their way to visit Mrs. Bray, and that the hallway was quite dark. They further testified, however, that in passing through this hallway they looked for numbers on various doors so as to locate Mrs. Bray's room, and that by observing carefully and at close range they were able to detect the numbers thereon.

At about 12 o'clock Mrs. Viles desired to go to a lavatory. There being no lavatory in connection with the room occupied by Mrs. Bray, she inquired of her as to the location of a public lavatory, and, being informed, she left Mrs Bray's room, stepped into the short hallway, and walked north until she reached the hallway extending east and west thence eastward along this hallway a distance of possibly some sixty feet until she reached the ladies' lavatory which is located on the south side of the hallway. There are also several guest rooms on the same side of this hallway. Both the lavatory and these guest rooms have southern exposures. Glass transoms were above the doors leading into these rooms.

She testified that as she was walking through this east and west hallway to the ladies' lavatory the door thereof was standing ajar, and rays of light were reflected into the hallway. She also stated that the electric light near the entrance to the lavatory was not burning, and that the hallway was quite dark. Apparently, however, she had no great difficulty in locating the lavatory. She states that as she approached and entered the lavatory she observed that the floor was some five or six inches higher than the floor in the hallway: 'I saw it and stepped up on it.' Her testimony is somewhat contradictory as to the length of time she remained in the lavatory room. She fixed the period variously as being three or four minutes, or ten minutes. She admits that the hallway was substantially in the same condition with relation to visibility or light at the time she stepped from the lavatory as it was at the time she entered it. The door of the lavatory opened inwardly. On leaving the lavatory, and while stepping down into the hallway, she fell and received the injuries complained of.

Appellants' cause of action is based on the failure of the respondent to have the hallway, extending east and west, sufficiently lighted so as to enable a person to see and detect the step-off in stepping from the lavatory room into the hallway. In passing on the question whether Mrs. Viles was guilty of contributory negligence as a matter of law, we will assume that the light near the entrance to the lavatory was not burning, although there is an abundance of evidence to the contrary.

In Watkins v. Piggly Wiggly (C. C. A.) 31 F. (2d) 889, 891, it was held that it was not negligence to maintain an entrance leading into a store higher than the sidewalk, even though the screen door, solid at the bottom, concealed from a person leaving the store the fact that the sidewalk was on a lower level, and that a woman who had entered the store from the street a short time Before , and knew the difference in the level, was barred from recovering for injuries sustained in leaving the store without noting the step. In the course of the opinion it is said: 'This attempted avoidance of the charge of want of care on her own part is fallacious, in that it is based upon what she did not observe on entering the store and upon what she says she was not called upon to notice at that time, rather than upon what was in plain sight and what she could have observed upon opening the screen when leaving the store. Upon opening the screen at that time, if she had observed, she would have seen the step-off to the sidewalk Before stepping forward. On reaching the screen door, she pushed it open and stepped forward without looking, with the inevitable result in such cases--a hard fall and bodily injury. The proximate cause of her fall and injury was her inattention, and not because the step-off was dangerous in itself or in the conditions surrounding it.'

In Hertz v. Advertiser Co., 201 Ala. 416, 78 So. 794 796, L. R. A. 1918F, 137, the business office of the defendant company was entered through a vestibule adjacent to, and on a level with, the street. A door from the vestibule opened into the office. A flight of steps led abruptly down from the door into the office. Plaintiff called at the office on business, opened the door, stepped forward, and fell down the stairs. There was evidence tending to show that it was dark inside the door and at the steps. She was injured, and brought suit to recover damages. The court said: 'If the premises were properly lighted, then, of course, there was no negligence, except her own; and if they were not properly lighted, she should have been more careful in going out of the vestibule into the main office building. She had no right to assume that the floor of the office building was on the same level as the floor of the vestibule. There was a door between the two apartments, and this of itself was a warning to those entering, who were not acquainted, to ascertain whether the floor to the main building was on a level with the vestibule and the sidewalk, or whether it was reached by ascending or descending steps. She is shown not to have exercised the slightest degree of care to ascertain what was beyond the door which separated the vestibule from the floor of the main...