Hastie, Chief Judge and Staley and Ganey, Circuit Judges. Ganey, Circuit Judge (dissenting).
This is a second appeal in an action for negligent personal injury. The accident occurred on the premises of the defendant's hotel in St. Thomas, Virgin Islands. On the evening of their arrival as guests at the hotel, the plaintiffs, husband and wife, were descending a stone stairway on the hotel grounds when the wife fell and sustained the injuries for which she and her husband now seek damages.
On first trial, the district court, sitting without a jury, heard the case on its merits and entered judgment for the defendant. On appeal, this court vacated the judgment and remanded the case for findings of fact in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. Fehringer v. Bluebeard's Castle, Inc., 3d Cir. 1968, 395 F.2d 851. Thereafter, the district court filed findings of fact and conclusions of law and again dismissed the complaint. This appeal followed.
The plaintiffs' basic allegations were that the stairs were inadequately lighted, faultily designed, and unprotected by a sufficient handrail or a warning sign. The district court made findings of fact adverse to all of these allegations, and found additionally that the injured plaintiff was contributorily negligent in failing "to see or look where she was going" and in failing to use the handrail. We focus attention upon the trial court's findings of adequate lighting and contributory negligence.*fn1
The record shows that the plaintiffs had arrived at the hotel the evening of the accident. They were using the steps in question for the first time. Photographs and a diagram of the stone and concrete stairway are in evidence. They show four exterior steps leading down from what appears to be a covered terrace or porch. The tread of each of the first three steps extends about a foot from the riser behind it to its forward edge. However, the tread of the bottom step is twice as wide, extending about two feet. Immediately below this wide bottom step is a sizeable landing.
It was Mrs. Fehringer's testimony that as she descended the stairs the illumination made what proved to be a wide bottom step appear to be part of the landing. Accordingly, she took one stride down onto the step and then, believing she was in a level area, a second stride forward, with the result that she fell heavily to the landing some eight inches below the step. More particularly she testified that:
"as we walked through that area [the terrace at the top of the steps] there were no lights. Now, I don't recall what lights may have been ahead of us, but we did walk through that area and there were no lights behind us. The lights were not lighted on that terrace. What light was present that night created a shadowy appearance at the bottom of those steps and on that area."
"I just simply could not see that that last step was a step. I thought I had negotiated all the steps and was on the landing at the bottom of the steps. * * *
The light was bad and the top of the riser of the last step seemed to me to be a seam or crack in this landing. * * *."
Except for a rather speculative inference that might be drawn from the fact that Mr. Fehringer, who accompanied his wife, did not fall, the record contains no direct or circumstantial evidence that is inconsistent with Mrs. Fehringer's testimony. With reference to lighting, there was evidence that there were a hanging light and a post light on the terrace some 11 feet behind the plaintiffs at the time of the accident. In addition there were two post lights ahead of the plaintiffs, in positions not clearly indicated, 15 and 31 feet from the steps. The evidence, other than Mrs. Fehringer's testimony, does not show whether any of these lights were on at the time of the accident, nor even how much illumination they supplied in the critical area when on.
Thus the record does not support the trial court's finding that "the stairs and adjacent areas were not inadequately lighted as the plaintiffs, who were walking side by side,*fn2 ...