Brown v. Milligan

• Decision Date: 05 March 1907
• Docket Number: 234-1905
• Citation: 33 Pa.Super. 244
• Parties: Brown v. Milligan, Appellant
• Court: Pennsylvania Superior Court

33 Pa.Super. 244

Brown v. Milligan, Appellant

No. 234-1905

Superior Court of Pennsylvania

March 5, 1907

Submitted December 4, 1906,

Appeal by defendant, from judgment of C.P. No. 4, Phila. Co.-1904 No. 3,527, on verdict for plaintiff in case of James Brown and Jane Brown v. Robert J. Milligan.

Trespass to recover damages for personal injuries. Before Audenreid J.

The facts are stated in the opinion of the Superior Court.

Verdict for James Brown for $ 68.00 and for Jane Brown $ 96.00.

Affirmed.

Thomas Earle White, of White, White & Taulane, for appellant. -- Plaintiff was guilty of contributory negligence: Robb v. Connellsville Borough, 137 Pa. 42; Shallcross v. Philadelphia, 187 Pa. 143; Easton v. Philadelphia, 26 Pa.Super. 517; Sickels v. Philadelphia, 209 Pa. 113.

Arthur B. Eaton, for appellee. -- The jury, by their verdict for the plaintiff, have settled the question of this defendant's negligence, and the contributory negligence of plaintiff in favor of plaintiff: Mintzer v. Hogg, 192 Pa. 137.

The plaintiff had a right, under the law, to assume that a pavement right in front of a well-patronized store would be a safe place to step: Bruch v. Philadelphia, 181 Pa. 588; Musselman v. Hatfield Borough, 202 Pa. 489; Glading v. Philadelphia, 202 Pa. 324; Butcher v. Philadelphia, 202 Pa. 1; Feather v. City of Reading, 155 Pa. 187.

In this case, when the plaintiff stepped from the doorway on to the pavement into the hole, she had a large market basket filled with groceries on her right arm, and a bundle of dry goods under her left arm, and the clerk was just ahead of her: Nicholson v. Philadelphia, 194 Pa. 460.

There was nothing about the condition of this pavement to have required the plaintiff to use extraordinary vigilance: Graham v. City of Philadelphia, 19 Pa.Super. 292; Snader v. Murphy, 19 Pa.Super. 35.

There was nothing about the condition of this pavement to indicate to this plaintiff that to step from the doorstep on to the pavement would be attended by any danger: Iseminger v. Water, etc., Co., 206 Pa. 591.

The plaintiff did not see the hole, and had no knowledge that such a condition existed, and had a right, under the law, to assume that it would be safe for her to step where she did: Curry v. City of Erie, 209 Pa. 283; Kirchner v. Smith, 207 Pa. 431; McHugh v. Kerr, 208 Pa. 225; Wible v. City of Philadelphia, 21 Pa.Super. 486; Carson v. Mackin, 23 Pa.Super. 50; Becker v. City of Philadelphia, 212 Pa. 379.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

MORRISON, J.

On August 2, 1902, between two and three o'clock in the afternoon, Mrs. Brown, one of the plaintiffs, was coming out of a store at the corner of Forty-third street and Lancaster avenue in Philadelphia and, as she alleges, stepped into a hole in the pavement about six inches from the door sill of the said store in which she had been buying goods. She was carrying a market basket filled with groceries on one arm and under the other arm she had a package of dry goods. She had bought the groceries in the defendant's store, in stepping out of which onto the sidewalk she fell. There were boxes and barrels on one side of the door of the store and a display of goods on the other side. A young man who waited upon her in the store came out in advance of her carrying a sack of flour which she had just purchased from him. The young man, Grau by name, was an employee of the defendant. Mrs. Brown says she expected her son to meet her and as she left the store she looked up to see whether he was coming down Forty-third street. The fall injured her ankle, and she suffered pain and loss of time and her husband lost her services for a time and incurred doctor's bill and other expenses.

This action in trespass was brought for the recovery of damages resulting from the said accident to Mrs. Brown. The jury found a verdict in favor of James Brown for $ 68.00, and in favor of Jane Brown for $ 96.00. Judgment being entered on said verdicts, the defendant appealed.

The action in favor of the husband and wife, and the verdicts and judgment are in due form: Act of May 8, 1895, P. L. 54; Milliren v. Sandy Township, 29 Pa.Super. 580.

The controlling questions are: (a) the negligence of the defendant; (b) the contributory negligence of Mrs. Brown. There is no question raised as to the measure of damages. As to the negligence of the defendant it is practically conceded that there was sufficient evidence from which the jury could find that the character and location of the hole in the pavement was such as to warrant a finding that the defendant was guilty of negligence. The evidence further shows that this hole had been there for several weeks and that it had been caused by the defendant's employees taking heavy barrels and boxes out on the pavement in such a manner that they had broken the pavement and caused the said hole. Therefore, the jury could find that the defendant had constructive notice of this unsafe place, within a few inches of the door sill of his store.

The contention on the part of the learned counsel for the appellant is that Mrs. Brown was guilty of contributory negligence and that the court ought to have given a binding instruction in favor of the defendant. In support of this contention it is argued that the accident happened in broad daylight and that if Mrs. Brown had been looking where she was going, as she ought to have done, she could have and undoubtedly would have seen this hole, and she would have been bound to avoid it. In support of this contention the counsel cites Robb v. Connellsville Borough, 137 Pa. 42, 20 A. 564; Shallcross v. City of Philadelphia, 187 Pa. 143, 40 A. 818; Easton v. Philadelphia, 26 Pa.Super. 517, and Sickels v. Phila., 209 Pa. 113, 58 A. 128. In the latter case the trial judge in entering a nonsuit said: " This accident happened in broad daylight; there was nothing at all to interfere with the plaintiff's seeing precisely where she was going. Every pedestrian using the streets of Philadelphia is obliged to use his eyes for his own protection. The plaintiff did not do that and is therefore nonsuited." This ruling of the court was affirmed by the Supreme Court.

It may be conceded that the question of whether Mrs. Brown was guilty of contributory negligence is a close one, but in our opinion, it does not fall within the class of cases controlled by the authorities above cited.

The defendant was a merchant carrying on a large business and he invited people to enter his store and go out of it over the defective pavement. The location of the hole within six inches of the door sill would, manifestly, make it less conspicuous than if it had been out in the pavement where people were accustomed to walk up and down the street. Mrs. Brown gives a reasonable explanation of why she failed to see this hole when she entered the store. She says she met a lady coming out whose dress skirt covered this hole so that she (Mrs. Brown) was unable to see it. It is in evidence that hundreds of persons passed in and out of the store in a single day. It is also in evidence that this hole had been covered with a piece of board for some time, but it was not there at the time of the accident. Mrs. Brown entered the store to make purchases and she was well loaded with goods when she passed out of the store and met with the accident. She was immediately preceded by an employee of the defendant who was carrying her sack of flour, which she had just purchased, with other goods, from the defendant's store. We think she had a right to assume that the entrance to the store was in a reasonably safe condition, and it is not likely that anyone would critically inspect the doorway and the pavement immediately connected therewith, either in going in or out of the store. A person turning from the main pavement to enter a store would naturally look at the door, or, if it was open, look into the store.

In a sense, Mrs. Brown may be said to have been in the care of the defendant and his servants while in the store, and while going therefrom. Especially is this so as she was closely following a servant of the defendant when the accident happened. The jury was entitled to draw the inference, from this circumstance, that she was not required to carefully inspect the pavement within a few inches of the door sill. This for the reason that the conduct of the defendant's servant was practically equivalent to saying to her, I will carry your flour out and you follow me and you will be safe.

It is argued that she was guilty of contributory negligence in looking for her son whom she expected to meet, as she stepped out of the doorway. Possibly this was careless, but it seems to us that it is probably what ninety-nine of every hundred persons would do in similar circumstances. She was heavily loaded with goods, and was looking for her son to relieve her, and as she was following a man who was perfectly familiar with the conditions, it cannot be said, as a matter of law, that she was guilty of contributory negligence. Moreover, it cannot be said, like in Sickels v Phila, 209 Pa. 113, 58 A. 128: " There was nothing at all to interfere with the plaintiff's seeing...