Citation Numbers: 62 Tenn. App. 250, 461 S.W.2d 46, 1970 Tenn. App. LEXIS 265
Judges: Carney, Hatherne, Taylor
Filed Date: 2/4/1970
Status: Precedential
Modified Date: 11/15/2024
The plaintiff below7, Mrs. Adair Mat-tox, age 26, was injured when she walked into a sliding glass door at a Howard Johnson Motor Lodge located at 3280 U.S. Highway 51 S. in Memphis, Tennessee, on the
On the night in question the American Airlines, Inc. was having a party at the Motor Lodge for office and clerical personnel from Memphis, Nashville, and Little Bock. Plaintiff, Mrs. Mattox, first went to the party about 5:00 P.M. while off for dinner; she returned to the office about 5:45 and worked until 10:00 P.M. when she completed her day’s work. She returned directly to the motel where the party was in progress arriving there about 10:15 P.M.
The focal point of the party was room 30 B of the motel. In that room much of the furniture had been removed to allow dancing, tables were set up for serving food and also a bar was set up to serve drinks, both alcoholic and non-alcoholic.
The rooms of the motel open out on a large courtyard surrounding a swimming pool. Entrance to the various rooms from the parking lot is by means of solid wood doors. The exit from the rooms to the courtyard and swimmjng pool is by wide, heavy sliding panel glass doors. Guests at the party numbering approximately fifty mingled and mixed in room 30 B and out on the courtyard around the pool.
The wall of room 30 B adjacent to the courtyard consisted of one wooden panel about four feet wide; two glass panels each approximately 4% feet wide and 9XA feet tall. One glass panel was stationary; the other glass panel constituting the door was on a track, top and bottom. The wooden panel butted against one wall of the room. The stationary glass panel was in the center and
Several times between 10:15 and 11:30 P.M. the plaintiff, Mrs. Mattox, went from room 30 B out onto the courtyard and around the swimming pool and back into the room for food and drink. The proof is that from 10:15 until the time she was injured she had had one glass of 7-Up and bourbon whisky. At the time of her injury she had taken a second glass but consumed only a small portion of it.
The lights in room 30 B were off but the room was indirectly lighted by a light from the bathroom. There was a bright light outside room 30 B on the wall near the stationary glass panel.
Apparently everyone was having a good time at the party. Mrs. Mattox had come to the party without her bathing suit but some of the guests either coaxed her or pushed her into the swimming pool in her street clothes. Mrs. Mattox explained that she had on a cotton dress and that no great harm would be done by going in swimming fully clad and therefore, she did not object to being coaxed or pushed into the pool. She did not remember at the i rial whether she was pushed or coaxed into the pool. After swimming- a short while she became rather chilled and started back into room 30 B from the courtyard. She walked into the glass panel door which had been shut without her knowledge since she last walked through
.Mrs. Mattox sustained a broken nose and other injuries about her face requiring plastic surgery. No assignments are directed to the amount of the judgment and her injuries will not be noticed further.
The plaintiff contended that the defendant was negligent in failing to put decals or other marks on the sliding glass panel door so that the plaintiff and others lawfully on the premises could more readily see that the doorway was closed by the sliding door panel and that the maintenance of the sliding glass panel without distinguishing marks gave an illusion of space and that the defendant should have anticipated that the plaintiff or other guests of the motel might fail to see the door in its then condition, walk into it and be injured.
Plaintiff further insisted that the drapes in the room, when drawn, masked the metal borders or frames of the two glass panels and left revealed only the floor and ceiling tracks and that the inside borders of the fixed and movable panels, when overlapped, made a central metal divider which was the same in appearance whether the sliding glass panel was fully opened or fully closed.
The defendants contended that there was a decal and also a handle on the sliding glass door which made the door readily seen. Defendant insisted that the glass panel and glass door were fully lighted by a light placed outside the room; that the doors at night had high reflective value and could easily be seen; that the doors in the
The jury found the issues in favor of the plaintiff and the Trial Judge approved the verdict.
The principal assignment of error is that, the Trial Judge should have directed a verdict in favor of the defendant at the conclusion of all the proof.
We are cited to no Tennessee case covering this question. The cases in other jurisdictions are in conflict. Bef-erence is made to 68 A.L.R.2d, page 1204 for the annotation “Colliding With Glass Door or Panel.” In one of the earlier cases, Rosenberg v. Hartman (1943), 313 Mass. 54, 46 N.E.2d 406, the plaintiff walked through an open door. Later, as he left the store, he walked into the glass door which had been closed in the meantime. The plantiff failed to see the door which was one large piece of transparent glass swung on pins at the top and bottom, with glass handles about a foot in length, fastened to the door by light colored metal fittings at each end, and with a metal plate with a key hole at about the usual position, of a lock, and it appeared that there was no sign or inscription on the door. The court held that the defendant as a matter1 of law was not guilty of negligence.
In Shannon v. Bigelow-Sanford Carpet Co. (1957), 96 Ga.App. 458, 100 S.E.2d 478, the entrance to the defendant’s place of business consisted of a solid glass panel and a solid glass door framed by metal strips which gave the appearance of being two double glass doors.
In Kanner v. Best Markets, Inc. (1958), 188 Pa.Super. 366, 147 A.2d 172, plaintiff and his wife entered the defendant’s market for the first time from a lighted parking lot. The inside of the store was also lighted. There were several doors but the plaintiff walked through a solid glass panel 18 inches wide with no lettering on it but having a chrome strip 6 inches from the floor. The plaintiff and wife assumed it to be another manner of entrance. It was held that the question of negligence of the defendant and contributory negligence of the plaintiff were properly left to the jury which found in favor of the plaintiff.
In some cases it has been held that plaintiffs who walked into glass panels or doors were guilty of contributory negligence as a matter of law. See Dukek v. Farwell, Ozmun, Kirk & Co. (1956), 248 Minn. 374, 80 N.W.2d 53; Pettigrew v. Nite-Cap, Inc. (1953, Fla.), 63 So.2d 492; Stone v. Hotel Seville, Inc. (1958, Fla.App.), 104 So.2d 847.
In a divided opinion in the case of Shannon v. Broadway & 41st Street Corp. (1947), 272 App.Div. 1029, 73 N.Y.S.2d 711, Aff’d 298 N.Y. 589, 81 N.E.2d 324, a judgment for a plaintiff patron of defendant’s restaurant was sustained. The plaintiff assumed that he was walking through an unobstructed exit and walked into a plate
Upon the trial of the case at bar, photographs of the glass panel and the glass door which plaintiff Mrs. Mat-tox ran into taken from outside Howard Johnson’s Motel at night were rejected by the Trial Judge because of the inability of the photographer to obtain the same lighting effects as prevailed on the night of the injury. Photographs of the panel and doorway taken from the outside in the daytime, one with the door open and one with the door shut, were admitted in evidence. The handle on the door is barely visible in the photograph, appears to have been made out of the same metal with the same color as the metal frame around the doorway and was mounted in a vertical position.
The decal 30 B which appeared to be about 2 inches high was placed over to the right or next to the metal frame of the door next to the brick wall and can be seen in the photograph. The brick wall which formed one side of room 30 B extends out into the courtyard so that one looking from the courtyard into the room through the glass door sees a continuation of the same wall inside.
Prom the testimony of the witnesses, the manner in which the plaintiff was injured, a study of the photographs in the record and the construction of the brick wall, we hold that reasonable men might draw different conclusions as to whether or not the defendant Motel Investment Company, in the installation of the glass door and glass panel in question, could have and should have anticipated that a person might walk into the glass door when closed and become injured.
For the same reason set out above we hold that His Honor the Trial Judge quite properly submitted the question of contributory negligence of the plaintiff to the jury. Even where facts are uncontradicted, the question of negligence is for the jury if minds of reasonable men may draw different conclusions or inferences therefrom. Nashville, Chattanooga & St. L. Ry. Co. v. Crawford, 39 Tenn.App. 37, 281 S.W.2d 69.
Assignment of error No. II complains of the action of the Trial Court in failing to grant three special
Assignments of error Nos. Ill and IY complain of the action of the Trial Court in permitting the witnesses, Wanda Brown Baker and John Campbell, to testify that in June, 1968, and December, 1968, some three years after the plaintiff’s accident they visited the defendant’s motel and observed that decals were missing from the sliding doors on rooms 28 and 29 which were adjacent to room 30 B where plaintiff was injured. One of defendant’s witnesses, in emphasizing that the decal 30 B was on the door at the time of the accident, had testified that none of the decals on any of the glass doors had ever been lost except one which had to be replaced after a glass was broken. We think it was within the discretion
Also we are of opinion that if such evidence was, in fact, inadmissible it was harmless error. We find from a reading of the record that the rejection of such evidence would not have resulted in a different, verdict in the lower Court. T.C.A. Section 27-117.
The judgment of the lower Court will be affirmed and the cost of the appeal taxed against the appellant and its sureties.