Fisher v. Pomeroy's, Inc.

• Decision Date: 25 May 1936
• Docket Number: 57
• Citation: 322 Pa. 389,185 A. 296
• Parties: Fisher v. Pomeroy's, Inc., Appellant
• Court: Pennsylvania Supreme Court

185 A. 296

322 Pa. 389

Fisher v. Pomeroy's, Inc., Appellant

No. 57

Supreme Court of Pennsylvania

May 25, 1936

Argued April 16, 1936

Appeal, No. 57, Jan. T., 1936, by defendant, from judgment of C.P. Schuylkill Co., May T., 1929, No. 539, in case of Lydia Fisher v. Pomeroy's, Inc. Judgment affirmed.

Trespass. Before HICKS, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff in sum of $3,432.50. Defendant appealed.

Errors assigned, among others, were various rulings on evidence.

The judgment is affirmed.

Chas E. Berger, for appellant.

Vincent J. Dalton, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. JUSTICE LINN:

The appellant-defendant conducts a department store in the City of Reading. The plaintiff was a customer. In descending a stairway on November 9, 1928, she caught her heel in the corrugations of a metal tread on the third step from the bottom, fell and sustained serious injury. While a verdict for either party would find ample support in the printed evidence, the jury, in reaching its verdict for plaintiff, may have concluded, as they had the power to conclude, that the metal tread had been worn to such extent that, notwithstanding the exercise of care, one's heel might be caught by the edge of the corrugation; that the condition had become dangerous and evidenced lack of that reasonable care required of defendant for customers invited into the store.

Plaintiff described the occurrence and called witnesses who testified that they had sustained injury at the same place; employees of the defendant testified that they had been notified of other instances of injury during the period from August, 1928, to March, 1930, while the stairway remained in the same condition.

Appellant contends that there was error in not excluding the testimony of other occurrences. In receiving evidence, much must be left to the discretion of the trial judge who should see that the real issue is kept clearly before the jury without unnecessary confusion or other interference with a fair trial. The plaintiff undertook to show that defendant maintained a dangerous stairway which caused her injury. But that would give her no right of action unless defendant also knew that the condition existed; the defendant is not an insurer of the safety of its customers, but is liable only for breach of duty. The evidence complained of showed that a condition, capable of causing injury, existed and that defendant knew of it. "The purpose is merely to show the nature of the machine or the place, as having a tendency to produce such human injuries; just as copper acids may have a tendency to destroy herbage or strychnia a tendency to produce convulsions. If it can be shown what that tendency is, it may then be possible to show that the maintenance of a place or machine of that tendency -- i.e. likely to cause such harm -- is negligence. But this additional conclusion is not necessarily involved in the evidential purpose, which seeks simply the illustration of the nature of the thing or the place by its observed effects": Wigmore, Evidence, volume 1, section 458, page 556. The evidence of previous and subsequent falls at the same place is not, alone, proof of negligence, but is to be considered by the jury with the fact that defendant maintained a store to which it invited customers; from all the evidence the jury must determine whether the defendant exercised reasonable care or not. See also Muller v. Kirschbaum, 298 Pa. 560, 565, 148 A. 851; Potter v. Natural Gas Co., 183 Pa. 575, 590, 39 A. 7; Baker v. Hagey, 177 Pa. 128, 35 A. 705; Hancock Ice Co. v. Perkiomen R.R. Co., 231 Pa. 117, 80 A. 63. Defendant recognized this purpose, for it offered evidence from which the jury might have found that a very large number of people used the stairway without injury.

Each step was 11 inches wide; the metal tread extended from the edge of the step inward toward the riser for a distance of 7 inches. The tread was corrugated, the ridges extending from one end of the step to the other, giving the appearance of a series of parallel bars or strips. Between each two corrugations or bars was a space of 3/8 inch at the top sloping inward until at the bottom (1/8 inch deep) the width was 1/4 inch. The steps had been worn by much use. Defendant introduced evidence that this type of tread was used in other department stores and in public places and complains that the court refused to affirm a point of...