Conboy v. Osage Tribe No. 113

• Decision Date: 03 January 1927
• Docket Number: 278
• Parties: Conboy, Appellant, v. Osage Tribe No. 113
• Court: Pennsylvania Supreme Court

135 A. 729

288 Pa. 193

Conboy, Appellant, v. Osage Tribe No. 113

No. 278

Supreme Court of Pennsylvania

January 3, 1927

Argued December 2, 1926

Appeal, No. 278, Jan. T., 1926, by plaintiff, from order of C.P. No. 1, Phila. Co., March T., 1923, No. 3907, refusing to take off nonsuit, in case of John W. Conboy v. Osage Tribe No. 113, I.O.R.M., Inc. Affirmed.

Trespass for personal injuries. Before McDEVITT, J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiff appealed.

Error assigned was, inter alia, refusal to take off nonsuit quoting record.

The judgment is affirmed.

Abraham Wernick, of Evans & Wernick, with him Nathaniel Shapiro, for appellant, cited: Mullen v. McGeagh, 88 Pa.Super. 381.

Alexander Meig Haig, with him Michael Francis Doyle, for appellees, cited: Smalley v. Bank, 86 Pa.Super. 280; Davis v. Edmondson, 261 Pa. 199; Sweeney v. Barrett, 151 Pa. 600; Johnson v. Mfg. Co., 282 Pa. 322; Murray v. Earl, 282 Pa. 517.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SCHAFFER:

Plaintiff appeals from the refusal to take off a nonsuit entered against him in an action to recover damages for personal injuries. He was a member of a fraternal organization which rented a room in the third story of a building belonging to defendant and on the afternoon of the occurrence out of which this suit grows was attending a meeting therein.

He left the lodge room, which was lighted, between 5:40 and 5:45 P.M., intending to go to his home, passed through an anteroom which was dark, the lights not having been put on, and thence into a hall which he testified was totally dark and in which was located the stairway he was required to use to reach the first floor of the building; it was also unlighted. He was familiar with the location of the stairway and banister, having gone up and down the stairs many times. Reaching the head of the stairs, he took hold of the banister with his left hand, paused for a little while and called the janitor of the building four times for the purpose of having him turn on the lights, and, getting no response, started down the stairs and as he was making the third step missed his footing and fell down the stairway and over the banister, receiving the injuries for which damages are here sought.

The trial judge on this showing entered a nonsuit on the ground of plaintiff's contributory negligence in testing the danger by endeavoring to traverse the stairs in the dark. There were other members of the organization in the meeting room which he had just left. When some of them reached the head of the stairs after plaintiff's fall, they struck matches and proceeded down to the lower floors in safety. One of them turned on the electric light by a switch located in the hallway; with its location plaintiff was unfamiliar.

The foregoing recited facts connected with the accident give rise at once to the query: Why did not plaintiff, upon finding the hall and stairs in darkness and getting no response to his calls for the janitor, retrace his steps to the lodge room (it was but a few feet away) and from some of those there present ascertain the location of the switch which controlled the electric lights? Was not this the dictate of ordinary prudence? We think it was: Smalley v. First Nat'l. Bank, 86 Pa.Super. 280; Davis v. Edmondson, 261 Pa. 199.

Appellant's counsel argues that it was the duty of the janitor of...