776 GUTHRIE v. FEW. [169 • GUTHRIE v. FEW. Opinion delivered November 9, 1925. . 1. ' MASTER A . ND SERVANT—NEGLIGENCE OF SERVANT CAUSING DAMAGE • 'TO GOODS.—In an 'action fcir nekligent injurY to plaintiff's 'goods • from overflow of water from defendant's hotel: situated • above ; plaintiff's .store, where there was .evidence that the,lotel clerk " was notified that the water was running over about 6 , a. .m., " Sunday, and he ordered the porter to mop it up,. but plaintiff knew nothing about the water until 2.30 p. m., if was error to giVe a : r peremptory instruction to fihd for defendants, as the evidence was sufficient,to warrant submission of the!case to the jury, who might have found that the damage was caused by the negligence of the porter in mopping up the. water or , of the clerk in failing to notify 2. MASTeR AND SERVANTLIABILITY FOR ' NEGLIGENCE OF SERVANT.— Uncontradicted testimony of plaintiff that'both defendants were , operating the hotel was sufficient to make a case against defend-
ARR.] GUTHRIE V. FEW. 777 ants. for 'the negligence of their employees causing injury to plaintiff's goods , by water from the room above plaintiff's store„ Appeal ftorn Lawrence 'Circuit Court,: Eastern DiS: trict 'Deane H: • Coleman, Judge; reversed. • Smith c6 Elackfol q; 'for , appellant. 'G. M. Gibson; for , appellee. • McCuLLocEt, C. J., : Appellant, Mrs. Fannie Guthrie, instituted this action , against appellees, E. A. Fe'W-. , and wife, to recover damages alleged to have. accrued by reason of the negligenee of . appellees in thoperation of a hotel at Walnut Ridge. The answer of appellees,contained appropriate denials of the allegationS of gence, and on . the triaLof the,cause, at the conclusion of the introduction of testimony by appellant, the , court gave a peremptory . instruction in favor of appellees. The • quostion presented on this appeal is, therefore, -Whether ot 'not there was evidence legally sufficient, to surstain a Verdict in \ favor of appellant. Appellant was operating a millinery store in.anroom on the ground floor of a certain building in Walnut Ridge, and had a stock of goods consisting of ladies' wear, such as hats, caps, waists, jackets, sweaters, veiling,- furs, etc. Appellees were : operating a hotel on the.'seCond, ilOor Of the building. Early 'in the morning of Sunday, January 6, 1924,. a :guest in . one of the rooms above appellant's store room left the water running in a basin, 'and 'the basin overflowed and flooded 'the room. Tho Water went through the floor, falling upon appellant.'s goods, and, according to the testimony, daniaged them to'the' extent of several 'hundred dollars. Appellant testified-that the goods were-damaged to the extent of $712.75. .'• Babcock, a witness for appellant, testified -that he occupied a room across the hall from the room in which the water escaped; and that about 4. :45 o'Clock on Sunday' morning the occupant of the room arOse to catch an early trnin. Tie testified that When he heard the guest in the other room he arose with the intention of dressing*and • foUnd that there was * no water running in the building,
778 GUTHRIE V. FEW. [169 and he laid down again and dozed off, but woke up about 5 :45 o'clock, and heard the "water running in the rOom across the hall. He testified that, after hearing the Water splashing as if the basin were overflowing, he . went into the room and found both faucets of the basin open, and that he turned the water off. He testified that the floor was flooded at that time, and that he went 00W11 to the offiCe at mice and notified the clerk in the office. He testified that; as soon as he notified the clerk, the latter sent a negro porter up to the room to mop up the water, and that he (witness) met appellee E. A. Few about twelve, o'ClOck arid told him about the incident of the guest leaving the water running. Appellant testified that she did not receive any information about the escape of the water • until about 2 :30 o'clock in the afternoon. Appellant called the night clerk of , the hotel as a witness,, and he testified aliout Babcock notifying him about 6 :15 o'clock that morning that the water was running, and that he sent the negro porter to the room to mop up the water, but that he did not notify anybody of the incident. . - According to the testimony, .the appellees did ..not arise until 'about noon on Sunday, and knew nothing about the incident until they were told aboutit by appellant. •. We are of the opinion that the evidence was legally sufficient to warrant a submission of the iSsues to the jury, and that the court erred in giving a peremptory instruction. • EVen though neither of the appellees were aware of the escape of the water until after the damage had been done, they are responsible in law for any damage caused by the negligence of their employees. The jury might have found that the negro porter was gnirty of negligenee in failing to sufficiently mop up the water so as to prevent it from flooding the room beneath, and that the . night clerk was' guilty of negligence, when informed of the eScape of the water, in failing to notify appellant, so that she could rescue her property from injury. AcCording to the testimony, the night clerk did l'iothing
but send a porter to mop up the water. He did not notify either the appellant or the appellees. If he had acted promptly in notifying appellant, .or if the porter ,had sufficiently mopped up the room, the damage to appellant's property might have- been lessened or altogether averted by preventing any considerable amount of water descending upon -the goods below. It is also contended that there was , negligence on the' part of uppellees themselves in failing to:provide a , basin with a safety escape -so that it would not overflow. This feature of the case, however, was not -sufficiently developed, and we express'no opinion at this tiMe as to whether:or:not that constituted negligence. .. 'Appellant .testified . that both 'of the appellees were engaged ,in operating the hotel. This was sufficient to make -a prima fadie case against them for the negligent act 6f their employees, and appellees introdUced no testimony 'tending tO show whieli one of them was the : proprietor of the hotel, whether one or both.. There: was therefore legally sufficient evidence introduced to make a case against both of the appellees, and the court erred itr giving the instruction favorable to each of them: Iteversed and -remanded for a new trial.'
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