Opinion
December 8, 1950.
Appeal from the Circuit Court, Dade County, Stanley Milledge, J.
Dixon, DeJarnette Bradford, Miami, for appellants.
Cushman, Woodard Gotthardt, Miami, for appellees.
The plaintiffs, appellees here, sued the defendant-appellants in the court below to recover for injuries sustained by Mrs. Feigen, one of the plaintiffs, when she fell on a stairway in defendants' hotel. The proximate cause of her injuries was alleged to be that "defendants carelessly and negligently failed to provide lights or emergency lights for said stairways, together with a separate service for such emergency lights" as required by the rules and regulations of the State Hotel Commission. From a verdict and judgment for the plaintiffs, the defendants have appealed.
It appears that, at about dinner time on the evening in question, the elevator was not working due to a power shortage, and that the plaintiffs, together with several other guests, were compelled to use the stairway in descending to the ground-floor dining room of the hotel. The over-load on the power system also resulted in a dimming of the lights in the hotel, and the stairway was, at least, poorly lighted and, according to some witnesses, it was "pitch black."
Mrs. Feigen, who had a room on the third floor, successfully negotiated the stairway between the third and second floors, but stumbled and fell shortly before reaching the first floor.
The defendants moved for a directed verdict at the close of plaintiffs' case and again at the close of the entire case, which motions were denied, and the cause was submitted to the jury solely on the question of whether the defendants were guilty of negligence, as charged. The trial judge charged the jury fully and clearly on this issue, but withdrew from the jury the question of Mrs. Feigen's contributory negligence, on the ground that "Mr. and Mrs. Feigen were not required to remain in their room when the elevator stopped running, and they cannot be held to be guilty of contributory negligence in attempting to use the stairway." This was error.
It is conceivable that the exigencies of some situations might authorize a trial judge to withdraw from the jury the question of plaintiff's contributory negligence in proceeding down an unlighted stairway, but no such emergency is here apparent. Nor, on the other hand, can it be said that, as a matter of law, Mrs. Feigen was guilty of contributory negligence in so proceeding. It is true that Mrs. Feigen made no effort to obtain a flashlight, or candles, or any other means of illumination, but it is also true that other guests were proceeding down the stairs, both in front of her, and behind her, and that this stairway was the only means of descending to the first floor when the elevator was not working. We think that the circumstances here presented bring this case within the general rule that contributory negligence is a question for the jury. See Felshin v. Sir, 149 Fla. 218, 5 So.2d 600, 602; Steele v. Independent Fish Co., Inc., 152 Fla. 739, 13 So.2d 14; Turner v. Modern Beauty Supply Co., Inc., 152 Fla. 3, 10 So.2d 488.
Since it is unnecessary, we will not discuss the other questions argued on this appeal.
For the reasons stated, the judgment is reversed and the cause remanded.
ADAMS, C.J., and TERRELL and THOMAS, JJ., concur.