Bailey v. Alexander Realty Co.

• Decision Date: 30 June 1941
• Docket Number: 43
• Citation: 342 Pa. 362,20 A.2d 754
• Parties: Bailey v. Alexander Realty Company, Appellant
• Court: Pennsylvania Supreme Court

20 A.2d 754

342 Pa. 362

Bailey v. Alexander Realty Company, Appellant

No. 43

Supreme Court of Pennsylvania

June 30, 1941

Argued May 28, 1941.

Appeal, No. 43, May T., 1941, from judgment of C.P. Dauphin Co., June T., 1938, No. 41, in case of James Lowell Bailey v Alexander Realty Company. Judgment reversed.

Trespass for personal injuries. Before GREER, J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff in sum of $7,000, remitted to $5,254.75, and judgment thereon. Defendant appealed.

Error assigned, among others, was refusal of judgment n.o.v.

The judgment is reversed and is here entered for the defendant.

W. E Shissler, with him John McI. Smith, for appellant.

John H Moody, with him Bailey & Rupp, for appellee.

Before SCHAFFER, C.J., MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. MAXEY, JUSTICE:

This is an appeal from a judgment in favor of the plaintiff in an action of trespass. The basic question before us is whether or not the court below should have declared the plaintiff guilty of contributory negligence as a matter of law. ^[*]

The statement of claim alleged that the defendant, a Pennsylvania corporation, was on November 15, 1937, the owner of the hotel building located at the southwest corner of Fourth and Market Streets in Harrisburg and was engaged in remodeling and repairing the building, that plaintiff was employed as a carpenter in the repairing of the building, and that in addition he was furnished by the defendant with a room in the building. On the above date after working hours and at about 5:30 p.m. he entered the building to return to his room. The statement alleged that at the time aforesaid plaintiff "walked to the elevator shaft on the ground floor of the building and, finding the door thereto partly open and no guard in place and believing the elevator lift to be level with the floor where he was standing, walked through the opening, and suddenly and without warning fell to the bottom of the elevator shaft, sustaining thereby serious and permanent injuries." The statement also alleged that the defendant failed "to provide or maintain good, sufficient and adequate light in the area and vicinity of the elevator shaft so as to properly illuminate and bring into view the actual condition of the elevator shaft at the time the plaintiff fell therein." After trial the jury awarded plaintiff $7,000. The motion of the defendant for judgment n.o.v. was refused and an order was made granting the plaintiff the option to remit the sum of $1,745.25 or suffer a re-trial of the case because of the excessiveness of the verdict. The plaintiff then filed a remittitur and judgment was entered in his behalf for $5,254.75. This appeal was then taken.

The circumstances immediately preceding plaintiff's falling through the elevator shaft were, according to his testimony, as follows: "There were steps back in the left-hand corner of the building, back pretty far, and the elevator shaft was over to the right. So I went in, and there were lights back towards the steps, but there were no direct lights in the direction of the elevator shaft. It was dark. It was five-thirty. I went to the elevator shaft and pulled the latch and the door opened. I expected the elevator to be there. It was automatic, and the elevator was supposed to be there. . . . So I opened the elevator door and expected to step into the elevator and turn on the light on the top -- they had the light out -- and I stepped to the basement, a distance of seventeen feet. That is the last I recall until I came to in the hospital. . . . There were no direct lights to the elevator shaft. It was very dim and shadowy. Some of the lights were turned out, and there was no direct light in the shaft." He was asked on cross-examination: "Do you know whether it was an automatic type elevator? A. The door was automatic." He explained that in order to make the elevator move the operator had to push a button on the inside of the elevator. He described the mechanism of the latch as follows: "In that elevator shaft it was so it could be opened when the elevator was there. When it [the elevator] was away it was supposed to be shut." He then claimed that "if the elevator was at the first floor, you would have to open two doors before you get into the carriage," that "you would have to open the lobby door and have to open the carriage door itself." He added that the door inside "was often left open". He was asked: "Then as I understand your testimony, there was no light at or near this elevator door at all on the night of this accident? A. No, or I could have seen into the elevator shaft. Q. How would you describe the condition of the area around the elevator door, as being illuminated or dark? A. It was dark inside the door. . . . Q. Would you say that entrance to the door was dark? A. There were lights outside. I knew where the door was, but to get over it was dark at the elevator door. . . . Q. It was so dark you couldn't see the latch? A. I couldn't see it. There were only shadows" there.

The court below in holding that the plaintiff could not be adjudged guilty of negligence as a matter of law relied on the case of Douville v. Northeastern Warehouse Co., 337 Pa. 188, 10 A.2d 394, in which we said: "If an elevator shaft is properly lighted, a person who approaches it is charged with the duty of seeing whether or not the elevator door is open when the elevator is not at that floor. . . . On the other hand, a person who approaches an elevator or an elevator shaft in a place so dark that scarcely anything is visible does so at his own risk and if, while thus enveloped in darkness, he is injured by colliding with an object or falling into a hole, he will be adjudged guilty of contributory negligence as a matter of law. . . . The third class of cases is where a person walks in a dim light and has reason to think that an elevator is at the floor when in fact it is not and he uses his best judgment as he proceeds and then meets with an accident. In such a case the question of his contributory negligence is for the jury: Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 194 A. 194."

In the last mentioned case, the plaintiff testified that "the light coming into the elevator [shaft] was diffused light; it...