Bream v. Berger

• Decision Date: 25 March 1957
• Citation: 388 Pa. 433,130 A.2d 708
• Court: Pennsylvania Supreme Court
• Parties: Margaret A. BREAM v. Benjamin BERGER, Individually and Trading as Berger Cleaners and Brith Achim Beneficial Association, a Corporation. Appeal of BRITH ACHIM BENEFICIAL ASSOCIATION, a Corporation.

Page 708

130 A.2d 708

388 Pa. 433

Margaret A. BREAM v.Benjamin BERGER, Individually and Trading as Berger Cleaners and Brith Achim Beneficial Association, a CorporationAppeal of BRITH ACHIM BENEFICIAL ASSOCIATION, a Corporation.

Supreme Court of Pennsylvania.

March 25, 1957.

Rehearing Denied April 24, 1957.

Charles L. Ford, James M. Marsh, Philadelphia, LaBrum and Doak, Philadelphia, for appellant.

Donald S. Waters, Thomas A. Masterson, Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.

BELL, Justice.

Plaintiff brought an action in trespass to recover damages for personal injuries against the owner and tenant of a store at 277 South 11th Street, Philadelphia.She intended to have a skirt dry cleaned.She had the skirt and her pocketbook in her left hand; she went to the store, which she had been in half a dozen times before, between 7:30 and 8:00 o'clock on the morning or August 3, 1953.The entrance to the store is recessed between display windows on either side.There is an 8 3/4"' step up onto the doorstep which leads into the store.The platform is 46"' wide and from its outer edge to the door is 35 3/4"'.The door consists of a frame door which opens into the store and a screen door which opens out toward the street.Plaintiff stepped up onto the doorstep and reached for the screen door which she said was closed; she believes this required two steps (forward); she pulled open the door and stepped back two steps, to allow for the sweeping arc of the screen door; on her second step backward she landed on the pavement where she fell.She does not recall where she was looking when she stepped back onto the pavement but thinks she was looking at the signs in the window.It could be inferred from plaintiff's testimony that the screen door, when it was ajar, left her very little space to stand on the doorstep without stepping back on to the sidewalk.Of course, plaintiff must be given the benefit of the evidence which is most favorable to her together with all reasonable inferences therefrom.¹

For reasons unknown, defendants based their motion for judgment n. o. v. solely on the ground of plaintiff's contributory negligence, instead of on the dual ground of want of negligence by defendants and contributory negligence by plaintiff.We shall, therefore, limit this opinion to the question of contributory negligence.

We are convinced that plaintiff was guilty of contributory negligence as a matter of law: Druding v. Philadelphia, 374 Pa. 202, 97 A.2d 365;Bartek v. Grossman, 356 Pa. 522, 52 A.2d 209;Bailey v. Alexander Realty Co., 342 Pa. 363, 20 A.2d 754.

In Druding v. Philadelphia, 374 Pa. at pages 204-205, 97 A.2d at page 366, supra, the Court said:

'Plaintiff was an invitee at the swimming pool and the City owed him the duty of reasonable care.However, as Mr. Justice Jones said in McCreery v. Westmoreland Farm Bureau, 357 Pa. 567, 570, 55 A.2d 399, 400: 'There is no duty, however, upon the possessor of land to warn or guard a business invitee against a danger that is obvious.'

"No person is required to take extra-ordinary precautions to save adults in apparent possession of their reasoning faculties from the consequences of their own inattentiveness and carelessness.* * * 'Everyone has a right to proceed upon the assumption that those to whom he owes a duty of care are normal in every respect and prepared on their part to exercise the care of prudent persons generally''.Jefferson v. Y. M. C. A., 354 Pa. 563, 567, 47 A.2d 653, 655.

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"What this court stated in Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A.2d 754, 756, applies to the instant case: '* * * When an individual can assure his own safety by the use of his senses, he must do so or abide the consequences of his carelessness.* * * The duty of availing oneself of one's senses, for self-protection can seldom be breached with physica impunity and never with legal sanction. * * *'

"A person may not recover for injuries which are received as a result of a failure on his part to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed': Boock v. Acme Markets Inc., 347 Pa. 501, 503, 32 A.2d 759, 760;Rogers v. Max Asen, Inc., 340 Pa. 328, 16 A.2d 529.'

The well established rule that a victim cannot recover damages for injuries sustained by him if he could have avoided the injury by the exercise of ordinary care bars this plaintiff's recovery.

This is not the case of a hidden danger, or of a danger that was obscured by another pedestrian, or by a worn or slippery or defective doorstep; this regrettable accident was caused by plaintiff's thoughtlessness, carelessness or inattention.An adult who is able to walk does not have to take dancing lessons to be able to take two steps forward and two steps backward, even though one of the steps involves stepping up onto or down from an 8"' elevation.If plaintiff could succeed in this case, a great many business people throughout Philadelphia (and Pennsylvania) would have to remodel their entrances and abolish display windows.It is, we believe, crystal clear that plaintiff could have avoided the accident by the exercise of ordinary care and a reasonable use of the senses which every normal person possesses.If she had used her senses and exercised reasonable care the accident could not possibly have happened.²

The Judgment is reversed and is here entered non obstante veredicto in favor of Benjamin Berger, Individually and Trading as Berger Cleaners, and Brith Achim Beneficial Association, a Corporation.

MUSMANNO, J., files a dissenting opinion.

MUSMANNO, Justice.

Benjamin Berger maintains on South 11th Street in Philadelphia a tailor and dry cleaning shop, the entrance door to which, recessed between two display windows, is gained by mounting a landing 8 3/4 inches above the sidewalk and advancing two steps.The depth of this landing or platform, from the threshold of the door to its outer edge overlooking the sidewalk, measures only 35 3/4 inches, so that, in order to open the door wide enough to permit one's entry into the shop, the visitor must withdraw two paces and descend to the sidewalk.With the door then opened, he remounts the platform and passes into the interior of the shop.

On the morning of August 3, 1953, Miss Margaret A. Bream, plaintiff in this case, visited the shop for the purpose of having a skirt cleaned.The garment and her purse hung from her left arm, as, with her right hand, she grasped the handle of the screen door and pulled it open.Doing this, she stepped back and fell off the platform to the sidewalk, sustaining serious injuries.She sued the shop-owner and the landlord, and recovered a verdict of $5,500, which this Court has reversed on the ground that she was guilty of contributory negligence as a matter of law.

The defendants admit negligence in the construction and maintenance of the entrance way, but they insist that if the plaintiff had exercised proper care she would not have been injured despite the perilous condition which they permitted.In this contention, the defendants ignore, as indeed so does the majority of this Court, that there are acts and stated conditions which can be regarded as negligent only if they exclude contributory negligence.There would be nothing negligent about the defendants' platform except that one might fall off it in opening the door in a perfectly normal fashion.In opening a door, nothing can be more natural and normal than that the pedestrian will open it wide enough for him to enter, and in that moment it would not be unusual for him to overlook or forget the step behind him.

This is not a case where the negligent act or condition which precipitates the injury is one which the injured person can ignore.This is not the case where the pedestrian goes where he has no right to be at all.For instance people do not need to step into holes in sidewalks, they are not required to put foot on damaged steps, they are under no compulsion to walk across icy pavements.But here the plaintiff was compelled to open the door.The store owners obliged her to open the door in order that they might sell her something, and they obliged her also to step back in getting her into the store.Under those circumstances they had the duty to see to it that when she stepped back she did not step over a drop in the level of the standing platform.Charging the plaintiff with contributory negligence as a matter of law in this case is transferring the responsibility of the store proprietor to the store's customer.It was up to the proprietor to remove the hazard at his doorstep.This could have been done easily by extending the platform 10 inches, or failing to do that, he should have erected a sign warning customers of the danger involved in stepping back.

The test in these cases is not what one specific person does, but what the average person would do, and unless this Court concludes that it is inconceivable that the average person, using due care, would in a hurried moment overlook the step he had just mounted, it may not legally convict the plaintiff of contributory negligence.

The defendants argue that the plaintiff knew that she had climbed a step, and therefore had to know that she would have to descend a step, but it is not established that she knew that when she drew back the door, the execution of the arc in the opening process would take her beyond the edge of the platform.She did not approach the door with a measuring tape.She did what the vast majority of the people would have done.She opened the door and expected to go into the store, not to find herself, through the simplest act in the world, lying on the sidewalk with a fractured leg.

The law applies itself to situations according to the standards of the average individual of ordinary...