Barr v. Scott

BARNARD, P. J. This is an action for damages for injuries received by the plaintiff when he fell down some stairs in an apartment house. The accident happened about 1 p. m. on July 1, 1951. The plaintiff and his wife entered the lobby of the building on the way to their apartment, which was down one floor. The plaintiff testified that, he observed some luggage in or near the elevator, which he usually used, and decided to go down the stairway. He had previously used this stairway on four or five occasions. This stairway had a wall on one side and a bannister and rail on the other. The carpet on the stairway was smooth and in good condition. After going down about three steps the plaintiff fell, coming to rest at the bottom. He received severe injuries and was taken to the hospital, accompanied by his wife. He was unconscious, and he testified that he did not recover consciousness until 24 to 48 hours later.

The complaint alleged that the defendants were negligent in failing to provide adequate lighting for this stairway, and in maintaining it in an unlighted condition. The answer denied negligence and, as an affirmative defense, alleged that the plaintiff failed to exercise due care, including the fact that he was in an intoxicated condition; and that his failure to exercise due care proximately contributed to his injuries. Prior to trial the action was dismissed as to all defendants except Faye M. Scott. A jury, after being out 32 minutes, returned a unanimous verdict in favor of the defendant. The plaintiff has appealed from the judgment.

It is not contended that the evidence is not sufficient to support the verdict. Strong evidence was produced in support of the conclusion that this stairway was well and adequately lighted; that the carpeted steps were smooth and in good condition; that there was a good handrail; and that the [825]plaintiff was, at the time of his fall, not in full possession of his faculties by reason of his intoxication. While there was conflicting evidence, the testimony of the plaintiff’s sole witness as to the actual occurrence, aside from himself and his wife, was rather thoroughly impeached; and plaintiff’s own testimony, to the effect that this stairway was in a condition of absolute darkness, which was repeated many times and in various ways, was so obviously exaggerated that it is not surprising that the jury did not accept it. There was other evidence that this was a sunshiny day, that many open doors and windows afforded a very considerable natural light, and that electric lights were burning in three places which would light up this stairway.