On appeal from a judgment of the Supreme Court.
For the appellant, Katzenbach, Gildea & Rudner.
For the respondents, Scammell, Knight & Reese.
The opinion of the court was delivered by
DONGES, J. The plaintiff, Mrs. Crouse, was a patron of the defendant in its hotel on October 12th, 1926. She went into a lavatory on the second floor of the hotel, and, desiring to use a toilet, which was in a compartment or stall on one side of the room, entered the compartment through the doorway thereof, after stepping up to a platform on which two toilet compartments were located. This platform was five or six inches above the level of the floor of the lavatory room, ran along a portion of one side thereof, and began about ten inches from the outside door of the toilet compartments. As she was leaving the toilet she fell and was injured. Suit was
instituted by Mrs. Crouse to recover for the injuries so received and by Mr. Crouse for his damage in consequence of such injuries to his wife. Trial was had at the Mercer Circuit, which resulted in verdicts for both plaintiffs. This appeal seeks a review of the judgment entered on such verdicts.
The grounds of appeal raise two points: (1) That the trial court erred in refusing to nonsuit, and to direct a verdict for the defendant; (2) that the trial court committed error in admitting testimony that other women had almost fallen in leaving the toilet in question.
The complaint alleged that the negligence of defendant "consisted of maintaining and permitting to exist on the said hotel premises occupied and controlled by the defendant, The Stacy-Trent Company, an extremely dangerous condition, to wit, a step leading from the said water-closet to the said lavatory, which said step could not be seen, or could not be readily seen by a person going from the said water-closet to the said lavatory; which said dangerous condition arose from the failure of the defendant to maintain proper lights in the said water-closet, or in the said lavatory; from the failure of the defendant to take other proper precautions to warn persons leaving the said water-closet that such a step existed; from the failure of the defendant to post a sufficient warning of the aforesaid dangerous condition, even though the said dangerous condition was known by the defendant to exist; from the maintaining by the defendant of the aforesaid step in a color or shade which was very deceiving and which would make it appear that no such step existed; from the maintaining of the walls of the said lavatory and the floor of said lavatory in a color or shade which would make it impossible for any person leaving the said water-closet to notice the said step; from maintaining a step at a distance from the door of said water-closet at which distance no step would or could be expected to exist, and from omitting to take many other proper precautions in and about the said lavatory and water-closet to secure the safety of the guests of the said hotel."
It was stipulated that there was no change in the design and construction of the step or platform; that it continued in
the same way as originally built when the hotel was erected in 1919 or 1920.
There was testimony that the lavatory was lighted by two electric lights, one in the middle of the room and one over the partition between the toilet stalls and the main room. There was some testimony that the latter light was not burning at the time of the occurrence complained of. There was testimony as to the similarity in appearance of the step or platform and the floor and walls, so that the step was not plainly distinguishable as a step and as a possible danger, particularly if the light over the closets was not lighted. Admittedly, the plaintiff stepped up to enter the closet. As she was leaving, she fell. She does not testify that she fell by stepping from the platform, but the ...