c30:No. 17552

GANEY, Circuit Judge
(dissenting).
I dissent. This case has been tried twice before. At the first trial the verdict was for the defendant, but this court, on review, sent it back to the trial court to make additional findings of fact. It was tried the second time and the court made elaborate findings of fact and again found for the defendant. It is now up on review before this court in which the majority has decided that it should be sent back to the trial court for the third time.
The record discloses the following facts: Mrs. Patricia B. Fehringer, the plaintiff, and her husband, Vincent D. Fehringer, left Murfreesboro, Tennessee, for a golfing holiday at the El Dorado Beach Hotel in San Juan, Puerto Rico. En route, they stopped at Bluebeard’s Castle Hotel, situate high on a hillside in Charlotte Amalie on the island of St. Thomas in the Virgin Islands, for a weekend in order to witness Carnival which was then in progress. They arrived at the hotel on the afternoon of Friday, April 30th, were assigned to a cottage adjacent to the hotel where similar cottages were located. After dinner, returning to their cottage, they left the dining room and proceeded through an area designated as a cocktail lounge and bar which can be described as follows: Exhibit 1 shows the cocktail lounge or terrace and the particular area in question which consists of a stone wall some 3 feet in height surrounding it on the right as one walks through, which was the direction Mr. and Mrs. Fehringer were proceeding. Along the concrete wall of the cocktail lounge area were two lights placed on the top of posts which Mrs. Fehringer testified were not lit and that the whole area was in darkness. Leaving the cocktail lounge, there was a step which had a riser of 3% inches and a tread of 28 inches on its right and 13 inches on the left, the width of the stairway being 49% inches. Mrs. Feh-ringer negotiated this first step and the remaining three steps when she stepped onto the fourth, which had a tread of 24 inches straight across the width of the stairway, some few inches longer than the tread at the top of the steps. She testified that she thought the edge of the last step was a break in the concrete and attempted to step off and in so doing fell off the step, twisted her ankle and injured her right shoulder. The exhibits show no break in the concrete on the fourth step and the only break running across the area is some 5 feet from the bottom of the steps where she fell. The steps or stairway, as indicated, were 49% inches wide and on the right, the entire length of the stairway, was a railing painted a bright white which ran to the end of the steps and on the left was a stone wall paralleling the railing, likewise, to the bottom of the steps. At the bottom of the steps is an area to the right of which is a pathway proceeding to the hotel’s pool and to the left is a stairway going up to another section of the hotel and at the foot of this stairway, on the left, is a light at the top of a post, which is 11 feet 2 inches from the bottom of the steps at which Mrs. Fehringer fell. There was no question but that this light was lit although she testified that it was a “bad light” and the area seemed shadowy. It was testified that the lights on the cocktail lounge and the light at the foot of the stairway to the left were lit by photoelectric cells, which lights became lit when a certain degree of darkness prevailed. There was no one in the area at the time she fell and her husband helped her to her feet and they proceeded through this open area and down the pathway to where their particular cottage was located. She did not call the hotel management and report that the lights in the cocktail lounge were out, nor is there any evidence in the record that other cottagers in the same area as the one they occupied complained of an outage of the lights in this area.
The next morning Mr. and Mrs. Feh-ringer went to the hotel dining room, ate their breakfast and then went to the desk and reported her fall. The clerk gave her the name of a doctor whom she called upon returning to her cottage, but could not locate, and she made no attempt to secure a doctor during the rest of the day. However, she sat along the pool in the afternoon in a bathing suit, hoping that the sun would be beneficial to her shoulder. She did not call a doctor on the following day, Sunday, but they packed their luggage, went to the airport and flew to San Juan. From there they proceeded to the Dorado Beach Hotel, where during the day she went to the dispensary and a nurse gave her some pills for the pain in her shoulder, of which she complained, and also a sling which the nurse thought would relieve the pain by supporting her arm. However, she testified she never used the sling. She stayed in San Juan about a week, never securing a doctor, flew back home and consulted a doctor there who treated her twice and finally recommended her to another doctor who testified that there were adhesions of the muscles in her right shoulder, sent her to the hospital where they were disconnected and she returned home in four days.
The manager of the hotel testified for the defense, as indicated, that the lights were turned on by photoelectric cells and that the light in the area where she fell was 11 feet 2 inches away from that spot and this light illuminated the whole area.
It is obvious that the trial judge at the two previous trials did not believe the plaintiffs story and, in my judgment, with good reason. It is difficult to believe that the cocktail lounge in this, one of the finest hotels on the Island, the night before the final day of Carnival, had lights which were not lit; that she negotiated another tread at the top of the steps in darkness and the last tread being of about equal length, she mistook, even in a “bad light,” as the edge of a crack in the concrete. Furthermore, the testimony of the manager that the light some 11 feet 2 inches from where she fell illuminated the entire area and that no other cottages in the same location as Mrs. Fehringer gave any report of the outage of lights in the area, gave substance to the trial judge’s findings in rendering judgment for the defendant. I cannot say that the finding of the trial judge who visited the scene of the area during the trial in holding that the defendant was not negligent was clearly erroneous, since there was substantial evidence on this record on which to base his judgment.
Additionally, I hold that the plaintiff, Mrs. Fehringer, was contributorily negligent. Assuming her testimony to be true, that the cocktail lounge lights behind her were out when she descended the steps and that the area was dark, she made no attempt in this situation to put her left hand against the wall to steady herself on the way down or hold on to her husband’s arm or to use the bright white railing which was provided by the hotel for just that purpose. However, she chose to walk unaided in the darkness, down the steps and into the area which she described has a “bad light” and being mistaken as to the last step, thinking the edge thereof was a break in the concrete, fell into the open area, the riser of which was 8% inches to the concrete open area. In so doing, I deem her actions to be contributorily negligent, deny recovery and would affirm judgment of the lower court.

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