Action by house guest against hosts for injuries sustained in fall down dimly lighted or dark cellarway which guest entered to get coat of another guest, all of guests' coast having been hung in cellarway by hosts. The Superior Court of New Castle County, 91 A.2d 60, directed a verdict and entered judgment for hosts on ground that guest had been contributorily negligent, and guest appealed. The Supreme Court, Southerland, C. J., held that whether guest, who had been unable to see anything in rear of what she supposed to be closet, was contributorily negligent in having failed to halt at place where illumination ceased, was question for jury.
Judgment reversed; cause remanded.
[48 Del. 47] Paul R. Rinard and William E. Taylor, Jr., of Wilmington, for appellants.
Joseph Donald Craven, of Wilmington, for appellees.
SOUTHERLAND, C. J., and WOLCOTT and TUNNELL, JJ., sitting.
SOUTHERLAND, Chief Justice.
[48 Del. 48] The briefs and argument on this appeal, involving an action to recover damages for negligence, bring before us two questions:
1. Did the evidence justify a finding of contributory negligence as a matter of law?
2. Was there sufficient evidence to go to the jury on the issue of defendants' negligence?
We shall refer to plaintiffs below, appellants, as ‘ plaintiffs'; to defendants below, appellees, as ‘ defendants'; and to Mrs. Anne Maher as ‘ plaintiff’ .
Before taking up the merits, a motion to dismiss the appeal requires consideration. Final judgment for the defendants was entered on January 2, 1952. A motion for a new trial was denied on August 30, 1952. A praecipe for writ of error was filed February 13, 1953. In accordance with Rule 5(4) of this Court the praecipe undertook to specify the judgment appealed from. It is described as the ‘ final judgment * * * dated 30th of August, 1952.’ On its face, the praecipe is ambiguous. Defendants, citing Trowell v. Diamond Supply Co., Del., 91 A.2d 797, and French v. Jeffries, 7 Cir., 161 F.2d 97, say that the praecipe should be construed as an appeal from the motion denying a new trial and that the appeal should be dismissed, since no question of abuse of discretion is presented. In support of the motion defendants point to the fact that plaintiffs' appendix fails to include a copy of the judgment of January 2, 1952, but does include a copy of the order of August 30, 1952. We think this a case of patent ambiguity in the praecipe which we should resolve in favor of the plaintiffs. As against the inference to be drawn from the appendix, there is the statement in the brief that the appeal is from the final judgment of January 2, 1952. As between the two inferences, that supporting the right of appeal is to be favored. We treat the matter as one of mistake in the date.
Defendants suggest that the final judgment is not before us, because not contained in the ‘ abstract’ of the record [48 Del. 49] (i. e., the appendix to plaintiffs' brief). This is a misconception of the function of the appendix. Cases in this Court are not heard upon an abstract, but upon the original record sent up from the lower court. Rule 7(1). The record shows the entry of final judgment on January 2, 1952.
The motion to dismiss is denied, and we turn to the merits.
A brief summary of the circumstances which led to this suit, and of plaintiffs' evidence touching the issue of contributory negligence, is as follows:
Plaintiff was invited by Barbara W. Voss, one of the defendants, to attend a meeting of the Democratic Women of New Castle County to be held in the home of Dr. and Mrs. Voss in Wilmington on March 30, 1950. Plaintiff accepted the invitation and arrived at the house about eight o'clock in the evening. At least four other guests, Miss Grace Aiken, Mrs. Mary Morris, Miss Brulatour and Mrs. Cresswell, also attended the meeting. As the guests arrived Mrs. Voss received them at the threshold of the living room, to which the front door apparently gave immediate access, and took the coats and wraps and disposed of them in the dining room. The dining room adjoined the living room immediately on the rear and was divided from it by a wall in which was a large opening, lacking any door.
The business of the meeting having been finished, the guests made ready to depart. Plaintiff went into the dining room to get her coat and found it hanging on a hook immediately inside what appeared to her to be a coat closet. She then volunteered to get the coat of another guest, Mrs. Morris, and returned to the supposed closet for that purpose. The ‘ closet’ was in fact a landing at the top of a stairway leading to the basement. Its front was lighted dimly from lights in the ceiling of the dining room, but the light was insufficient to illuminate the rear. Coats were hanging on both sides of the closet. She stepped toward the rear in an attempt to find Mrs. Morris' coat and fell headlong down the stairway and suffered severe injuries.
[48 Del. 50] Thereafter plaintiff and her husband each brought a suit against the defendants,
Dr. and Mrs. Voss, to recover damages. The complaints alleged that the place where the coats and wraps had been hung by Mrs. Voss was to all outward appearances a clothes closet in the dining room but in fact was an open unlighted cellarway; that plaintiff had the right to rely on the apparent use of the opening as a coat closet; and that defendants were grossly negligent in failing to warn her of the hazard and should have known, or should have had reasonable cause to believe, that a guest going to the closet might be entrapped by the appearance of the opening and might suffer injury.
A motion to dismiss the complaints was brought on for hearing and was denied. Del.Super., 84 A.2d 527.
The case came on for trial. At the conclusion of plaintiffs' evidence defendants moved for a directed verdict on three grounds, the third of which was that plaintiff was as a ...