Burton v. Horn & Hardart Baking Co.

• Decision Date: 29 May 1952
• Docket Number: 7712
• Parties: BURTON v. HORN & HARDART BAKING CO.
• Court: Pennsylvania Supreme Court

88 A.2d 873

371 Pa. 60

BURTON v. HORN & HARDART BAKING CO.

No. 7712

Supreme Court of Pennsylvania

May 29, 1952

Argued April 16, 1952

Appeal, No. 165, Jan. T., 1952, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1949, No 3901, in case of Sylvia Burton v. Horn & Hardart Baking Co. Judgment affirmed.

Trespass for personal injuries. Before PARRY, J.

Judgment of compulsory nonsuit entered; plaintiff's motion to take off nonsuit overruled. Plaintiff appealed.

Judgment affirmed.

Samuel I. Sacks , with him Sacks & Piwosky , for appellant.

John J. McDevitt, 3rd , with him Peter P. Liebert, 3rd , for appellee.

Before DREW, C.J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. JUSTICE CHIDSEY

This is an appeal from a decree by the Court of Common Pleas of Philadelphia County refusing to take off a nonsuit in a trespass action for personal injuries.

Plaintiff, a 76 year old woman at the time of the accident, slipped as she was going down the steps leading to the ladies' room in one of defendant's restaurants. The accident occurred on November 21, 1949, about 11:20 a.m.

The steps were 44 inches wide and after a series of three steps there was a landing and a number of steps leading to the basement and the ladies' room. These steps had handrails on both sides and were well lighted. The plaintiff and her daughter testified that, after reaching the landing, the plaintiff slipped on the top step of the second series. At the time plaintiff slipped she had hold of the railing on her right side, her daughter was supporting her left arm and also holding onto the railing on the other side.

The only testimony relied on to hold the defendant liable is as follows: Plaintiff testified, "... I step a little bit and after this I step with the left foot on the step, and I step the first step, and I don't know what's the matter; it was slippery, I don't know, and I fell down." And again she said, "Maybe it was a little bit slippy, the steps." Her daughter testified, "... I saw that the steps were wet, as though they had just been wiped down." When asked to describe the wet condition of the steps, she replied, "Well, I would say when I would wipe my steps down, you know, with a wet cloth, wash them down, they were wet; it wasn't pails of water, anything like that on them; it was just, you know, as though they had just been wiped down." She further said, "I would say something like slightly wet; damp wouldn't be wet enough."

Thus, in summary, all that plaintiff's evidence established was that she slipped on steps that were slightly wet, apparently because they had just been washed. The words of Mr. Chief Justice DREW (then Mr. Justice DREW) in Bowser et ux. v. J. C. Penney Company , 354 Pa. 1, 46 A.2d 324, state the general rule, at p. 4: "The real question is not whether there was an improper application but whether such alleged improper application created a condition so obviously dangerous as to amount to evidence from which an inference of negligence would arise:". In this case there was no such evidence.

In Flora et ux. v. Great Atlantic & Pacific Tea Company , 330 Pa. 166, 198 A. 663, which appellant relies upon, there was water and slush on the floor which the owner recognized as dangerous and failed to correct. The instant case is also distinguishable from Brand v. Donahoe's Incorporated , 357 Pa. 474, 55 A.2d 362, where plaintiff slipped because soap was permitted to remain on the floor. In that case, although this Court upheld a verdict for the plaintiff, Mr. Justice PATTERSON said, p. 477, "Certainly, it is not negligence to wash a floor and proof of an improper washing must be had."

Under the view we take of this case it becomes unnecessary to consider whether the evidence was sufficient to warrant an inference that the defendant had notice of the condition because it was its employe who had washed the steps.

Appellant also contends that the trial judge improperly ruled certain evidence inadmissible. At one point in the trial the daughter was not permitted to state what she said to the manager of the defendant's restaurant shortly after the accident. It appears in the record that the manager did not answer her. Plaintiff's theory of admissibility must therefore depend upon an admission by an agent through silence. ^[1] But, "The maxim 'silence gives consent' is not an invariable and precise rule of evidence. 'The general principle or relevancy tells us that the inference of assent may safely be made only when no other explanation is equally consistent with silence.' Wigmore on Evidence, 3rd Ed., § 1071." Smith et ux. v. American Stores Company , 156 Pa.Super. 375, 379, 40 A.2d 696; Moore v. Smith , 14 S. & R. 388, 393. In the instant case the manager's silence may well have been motivated by a desire to avoid a dispute with this customer whose mother had just been injured. We therefore decide that such evidence was properly rejected.

The court below also rejected an offer by plaintiff's counsel to prove by an expert witness that the steps were improperly constructed in that they failed to have an abrasive material in them or a safety tread and that terrazzo steps are slippery and dangerous when wet. Expert testimony is inadmissible when the matter can be described to the jury and the condition evaluated by them without the assistance of one claiming to possess special knowledge upon the subject: Jacob v. Philadelphia , 333 Pa. 584, 5 A.2d 176; Miller et al. v. Philadelphia , 345 Pa. 1, 9, 25 A.2d 185 (where this Court, speaking through Mr. Justice LINN, upheld the refusal of expert testimony of an architect regarding the unsafe maintenance and construction of a trial in Fairmont Park). Defendant was not required to use the best construction or material but only had the duty to supply a reasonably safe place: Miller v. Philadelphia , supra; Copelan et ux. v. Stanley Company of America , 142 Pa.Super. 603, 17 A.2d 659.

Finally plaintiff contends that certain literature published by the National Safety Council regarding slippery floors and what should be done to terrazzo steps should have been admitted into evidence. These exhibits are subject to the same objection as the expert testimony.

Judgment affirmed.

DISSENT BY: MUSMANNO

DISSENTING OPINION BY MR. JUSTICE MUSMANNO

The majority opinion says: "All that plaintiff's evidence established was that she slipped on steps that were slightly wet, apparently because they had just been washed ." (italics supplied) But as I view it, that is the whole crux of the case. The negligence lay in the very fact that the defendant's employe had washed down the steps and did not take the precautionary measures to rope off the stairs until they had dried, or to warn patrons of the slipperiness of the steps in their wet condition. We all know that in office buildings or in our own homes everyone is momentarily immobilized or urged to walk slowly and drag one's feet over tile, marble, stone or linoleum just washed.

The law is not unreasonable -- or should not be. It only asks what is fair and just. It only charges one with what is foreseeable. The proprietor of a restaurant is engaged in business for a profit; he invites people to come in to his establishment to spend money. Is it unfair to expect that he should adopt reasonable precautions to prevent those patrons from injury? Suppose someone had dropped soup on the stairs? Can there be any question about the responsibility of the proprietor (once he learned of the spilling actually or constructively,) to take the required measures to safeguard patrons from slipping on the spilled soup? And how does that responsibility differ if the slipperiness is caused by water or any other substance of which the defendant is aware?

In Nettis v. General Tire Co ., 317 Pa. 204, this court said: "All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended."

In Dalgleish v. Oppenheim, Collins & Co ., 302 Pa. 88, 91, 152 A. 759, this Court also said: "It is, of course, a storekeeper's duty to use ordinary care to protect a customer from harm."

The majority opinion distinguishes the facts in the case of Flora et ux. v. Great Atlantic & Pacific Tea Co . 330 Pa. 166, 198 A. 663, from the ones in the case at bar, but the principle is the same. There, the floor had been made slippery because of snow, water and slush tracked in by patrons. The defendant's employes mopped up the floor from time to time but did not do so for an hour and a half prior to the accident. The Supreme Court, affirming the verdict for the plaintiff said: "The floor of the store was covered with smooth linoleum which had, as one witness described it, 'a slippery disposition.' It is a matter open to common observation that many stores have floor coverings of rubber or other materials which are proof against slipping. It was shown that it was defendant's practice in bad weather to strew either an anti-slip compound or sawdust on the floor, to prevent slipping. This indicates that defendant was aware of a floor...