West v. Thomas, 97 Ala. 622

West v. Thomas

97 Ala. 622 | Ala. | 1892

HEAD, J.

— Tlie demurrers to tbe complaint were properly overruled. The averments show, witb sufficient certainty, negligence on tbe part of tbe defendant, as proprietor and keeper of tbe hotel, in tbe construction and maintenance of tbe stair-case opening into the ball of tbe hotel, along which plaintiff and other guests bad a right to pass, and in tbe failure to have tbe ball, on tbe night of plaintiff’s injury, sufficiently lighted to enable him to see, and guard against falling into the dangerous opening; and that by reason of such negligence, plaintiff, who was a guest of tbe .hotel, while lawfully walking along .the ball, going to bis room, fell into tbe open stair-way and was injured, without fault on bis part. There can be no doubt that it is a duty of tbe keeper of a hotel to bis guests to have and maintain bis premises in a condition of reasonable safety to tbe guests. — 16 Am& Eng. Encyc. of Law, 414, notes; M. & E. R. R. Co. v. Thompson, 77 Ala. 448; A. G. S. R. R. Co. v. Arnold, 80 Ala. 600; s. c. 84 Ala. 159, and other cases cited in brief of appellee’s counsel. That duty, and its breach, are clearly set forth in tbe present complaint.

Charge 1, requested by defendant was properly refused. It is an argument merely, asserting no proposition of law upon which it was tbe duty of tbe court to instruct tbe jury.

Under tbe evidence in this case, tbe question of contributory negligence was clearly one for tbe jury. We can not affirm as matter of law, that it was negligence in plaintiff to undertake to return, through tbe darkened hallway, to bis room from tbe room of bis friend, another guest of the hotel. It was for tbe jury to determine from all tbe circumstances, whether be was justified in making tbe effort, without calling for a light or assistance. — A. G. S. R. R. Co. v. Arnold84 Ala. 159, 6th bead note. In tbe case cited, tbe evidence disclosed that Arnold was well acquainted witb tbe steps over which be bad to pass, in passing out of tbe ticket office to tbe train; that there were servants of tbe railroad company.in tbe office, upon whom be could have called for assistance, and one or more lights be could have applied for, yet *626he undertook to pass out over the steps in the dark, without calling for aid or light, and in the effort, missed the steps and fell. This court held that the question of contributory negligence on his part, was for the jury. Charges 2, 3, 4, 5, and 10 were therefore properly refused.

Charge 8 was properly refused. It was for the jury to determine what notice defendant should have given plaintiff of the dangerous opening. The charge as framed was calculated to mislead the jury.

The burden of proof was on the defendant to satisfy the jury that plaintiff was guilty of contributory negligence, and charge 9 was properly refused.

Whether it was the duty of the defendant to barricade the stair-way down which the plaintiff fell, by putting a chain or other like obstruction across the entrance of the same, was a question for the jury to determine under all the evidence. Charge 11 was therefore properly refused. Charge 12 has been several times pronounced bad by this court. The plaintiff’s evidence tended to prove the material allegations of both counts of the complaint, and the general affirmative charges requested by defendant were consequently properly refused.

There are many exceptions, in the record, reserved by defendant which we do not consider, for the reason that they are not assigned as errors. The judgment of the Circuit Court is affirmed.

Affirmed.