Bartek v. Grossman
Decision Date | 17 April 1947 |
Docket Number | 3199 |
Citation | 356 Pa. 522,52 A.2d 209 |
Parties | Bartek, Appellant, v. Grossman et al |
Court | Pennsylvania Supreme Court |
Argued March 27, 1947
Appeal, No. 58, March T., 1946, from judgment of C.P Allegheny Co., April T., 1944, No. 1381, in case of Joseph Bartek v. Sadie L. Grossman et al. Judgment affirmed.
Trespass for personal injuries. Before EGAN, J.
Verdict directed for defendants and judgment entered thereon. Plaintiff appealed.
The judgment is affirmed.
Charles G. Notari, with him Harry Ravick, for appellant.
Joseph R. Doherty , with him McCloskey, Best & Leslie, for Sadie L. Grossman et al., appellees.
William H. Eckert , with him S. Stephen Berger and Smith, Buchanan & Ingersoll , for United States Realty Corporation, appellee.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.
This is an action of trespass to recover damages for personal injuries incurred by the plaintiff through the alleged negligence of the defendants. The original defendants, Sadie L. Grossman and Ida Hoffenberg, were owners of a vacant store at the corner of Fifth Avenue and Court Place in the City of Pittsburgh. They authorized the United States Realty Company to find a tenant.
On or about March 10, 1943, plaintiff, a prospective tenant, made inquiry at the office of the United States Realty, Company, and this company sent its agent with him to inspect the premises. The plaintiff entered the premises under the agent's guidance and while he followed him from a lighted room into a dark room, he fell into an open trapdoor, sustaining serious injuries to his legs, back, spine and other portions of his body.
Plaintiff brought suit against Sadie L. Grossman and Ida Hoffenberg and they brought upon the record the United States Realty Company as an additional defendant. The case was tried before Judge EGAN and a jury. At the close of the case, the court granted defendant's motion for a directed verdict. Plaintiff moved for a new trial. The court en banc refused this motion and entered judgment for the defendants. This appeal followed.
The plaintiff testified that he visited the store with the Realty Company's agent at noon on March 10, 1943, to inspect the premises. He added:
As to lighting conditions at the time and place, the following questions were addressed to the plaintiff and he made the answers indicated: Q. Could you have seen that opening in the floor if you had looked at the floor? A. I don't believe I would have been able to see it. Q. Why not? Was it too dark? A. Not that much dark, but if I had a chance to look around maybe I would see it. Q. Nothing stopped you from looking around? A. Certainly. He was ahead of me but as soon as he stopped I made another step and I was down in the cellar... When somebody is with you, you don't look down to watch if there is a hole there."
The court, in its opinion refusing a new trial and ordering judgment for the defendant, correctly said, .
What this court stated in Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A.2d 754, applies to the instant case: See also Anschel v. P.R.R. Co., 346 Pa. 123, 29 A.2d 694.
McVeagh v. Bass , 110 Pa.Super. 379, 168 A. 777, was a case in which a customer (i.e. and invitee, as in the instant case) entered a store which (as she said) "was so dark that she could not see a thing in the store, not even the floor under her feet." She was also blind in her right eye. She was accompanied by her daughter. While in the store she walked about three feet to go to the counter, and then fell down an open stairway. The Superior Court in sustaining the action of Judge HORACE STERN, then of the Common Pleas Court No. 2 of Philadelphia County, in entering judgment for the defendant non obstante verdicto quoted from Judge STERN'S opinion as follows: "To enter a store where she [plaintiff] had never been before and start to walk forward when it was so dark that she could not see even the floor beneath her feet, was an act of contributory negligence."
We see no logical basis for distinguishing the case just cited and the instant case. It is not the law of Pennsylvania that when a person walks into an opening in semi-darkness the case is always for the jury. We made that plain in Bailey v. Alexander Realty Co., supra, where we said (p. 367): (Italics supplied). In other words, under all circumstances a man must use the senses that are available to him. If he uses his sense of sight but because there is enough light to cast shadows which mislead him to his injury the question of his negligence may be for the jury. We so held in Murphy v. Bernhein & Sons, Inc., 327 Pa. 285, 194 A. 194. In the instant case plaintiff made no claim that his senses were deceived by shadows or by anything else. He simply refused to avail himself of his sense of sight and in blind confidence followed the man who was ahead of him. There was no necessity of his doing so. No individual in full possession of his senses is justified in dropping those safeguards which are instinctive in every human being and in depending on another for his safety when he is fully able to depend on himself. This court said in Hoffner v. Bergdoll , 309 Pa. 558, 164 A. 607, that the plaintiff could not delegate to another her own duty to exercise due care and that if she did she was guilty of contributory negligence. These cases rule the instant case.
The judgment is affirmed.
I must dissent because I am convinced that the learned court below erred in declaring plaintiff guilty of contributory negligence as a matter of law. It is admitted that the material facts are adequately set forth by the majority opinion, but I must voice my complete disagreement with the legal conclusion reached on the basis of those facts.
"Contributory negligence will be judicially declared only where it is so clear that there is no room for fair and reasonable persons to disagree as to its existence": Cox v. Scarazzo , 353 Pa. 15, 44 A.2d 294. There plaintiff walked through a swinging door which interfered with his vision, found his path barred by a truck on the sidewalk and stepped into an open delivery well in broad daylight, but his contributory negligence was held to be a jury question. When we apply the legal principles enunciated in that case to the factual situation presented by the record now before us, it leaves no doubt that here plaintiff's negligence cannot be declared as a matter of law.
The case of Dively v. Penn-Pittsburgh Corp....
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