Hamilton v. Fean
| Decision Date | 24 June 1966 |
| Citation | 221 A.2d 309,422 Pa. 373 |
| Parties | James HAMILTON and Helen Hamilton, his wife, Appellants, v. Alvin FEAN and Catherine Fean. |
| Court | Pennsylvania Supreme Court |
William C. Archbold, Jr., Chester, for appellants.
John S. J. Brooks, Media, James Patterson, Brooks, Macartney & Holl, Media, for appellees.
On the evening of August 24, 1960, the plaintiff Mrs. Helen Hamilton, and her two friends Mrs. Mary Foster and Miss Marie Fean, had visited a hospital, returned to the home of Mrs Hamilton and then set out in Mrs. Foster's automobile to take Miss Fean to her home. Mrs. Hamilton went along to give Mrs. Foster company on the way back after they would have left Miss Fean at her home. When the three ladies arrived at Miss Fean's home, Mrs. Foster's automobile stalled and a telephone call was made to an automobile repairman. While waiting for the repairman to arrive, the three ladies went out on the Fean home porch, particularly to guide the repairman in the event he might have difficulty in locating the house, it then being midnight.
As they conversed and walked about, they occasionally leaned against the railing surrounding the porch. Mrs. Hamilton was resting against the pillar to which the railing was attached when the latter suddenly gave way and they all fell to the driveway beneath, fortunately not too far away. Nevertheless, Mrs. Hamilton sustained serious injuries and she brought suit against the owner of the house, Mrs. Catherine Fean. Her son, Alvin Fean, who had supervised repairs to the property and was regarded as agent for Mrs. Fean, was later added as a co-defendant.
The jury returned a verdict in favor of the defendants and the plaintiff has appealed from a new trial, alleging trial errors attributed to the Trial Judge. The Judge charged the jury that since Mrs. Hamilton was a gratuitous licensee she was to be classified in the 'lowest' of the category of guests and that, therefore, the defendant owed her only a 'modest' responsibility as to due care. There is no such thing as a 'modest' responsibility in the law. Responsibility exists or does not exist. There can be modification of care required, of course, and it is all spelled out in the books, but a modest responsibility is not defined or can it be defined at law. Nor can an invited person be placed in the 'lowest category' of guests. No matter how far down the guest may be listed in the social register and no matter how patience-taxing he may be, he certainly would not rate lower than an uninvited bore. Moreover, Mrs. Hamilton was at the Fean home more as a helping companion than as a gratuitous guest. She had accompanied Mrs. Foster who had made the trip to the Fean home for the accommodation of Miss Fean. Mrs. Hamilton, therefore, was entitled to that due care which would ensure her of being informed of a latent defect factually or impliedly known by the landlord. (Matthews v. Spiegel, 385 Pa. 203, 122 A.2d 696.)
The fact that neither Mrs. Catherine Fean, owner of the Fean house, nor her son Alvin Fean, was at home on the night of the accident, could reduce their liability as landlords if in fact they were responsible for any defect in the structure of the house. Thus it was error for the Court to charge the jury, as it did:
Plaintiff's counsel objected to this portion of the Charge whereupon the Court endeavored to explain:
This statement by the Judge told the jury that absence Could absolve the defendants from liability. The man who plants a bomb and then absents himself from the explosion is as responsible for the harm the explosion inflicts on others as if he had lighted the bomb and thrown it at the victims. Whatever fault could be ascribed to the defendants for an allegedly defective railing did not arise the night of the accident so that it did not matter whether they were present or not. Their averred responsibility lay in the fact that they had allowed the railing to become defective and had done nothing to repair the defect. The use by the Court of the phrase 'might have been' is indeed only a paper stanchion charged with the responsibility of holding in place a railing of control. It necessarily implies the possibility that the defendant might Not have been regarded negligent because absent which fact, as indicated, is wholly irrelevant. Where a latent defect is involved, the geographical distance between the defective instrumentality and the landlord is no more relevant than the color of his mustache.
Prior to the rendering in open court of the final verdict, the jury sent to the Trial Judge a note which said:
'Since we find contributory negligence on both sides--How do we state our verdict?'
The Judge instructed the jury that 'in that case' they would write the word 'Defendants' on both verdict slips. It is evident from this exchange, that, regardless of defendants' negligence, the jury, under the Court's charge, could not have returned a verdict for the plaintiff since they found she was contributorily negligent. It is important, therefore, in view of the plaintiff's request for a new trial, that we examine what was said on the subject of contributory negligence. After properly explaining that the mere placing of the hands on the rail or a 'slight leaning against it' would not constitute contributory negligence, the Court wholly nullified that negation by standing:
To say that the mere touching or a slight leaning against a porch railing is negligence is obviously untenable. What is a railing for? The most elementary thing for people to do is to lean against something. Man is either naturally lazy or Nature, knowing of man's constant exertion throughout the day, induces him to rest at every opportunity even if only for a moment against a railing, fence, pillar or wall.
In view of the fact, as has been stated, that the jury's verdict was predicated upon the plaintiff's contributory negligence, every part of the court's charge which incorrectly stated that any particular act constituted contributory negligence must be regarded as fatal error.
Although Mrs. Hamilton testified that she was leaning against the pillar into which the railing was anchored when the latter detached from its fastenings, she did also say that her hand was resting on the railing. If the jury gave to the Court's words literal applicability and there is no evidence that they did not, then the Court's saying that a mere touching of the railing constituted contributory negligence was an erroneous statement of the law.
There was no evidence, photographic or otherwise, which would have put the plaintiff on notice that the railing was defectively constructed or defectively attached. On the contrary, the evidence would suggest that the railing was of sturdy construction.
The Court correctly charged that the plaintiff had to prove that the defendant's negligence, if it existed, was the proximate cause of the accident in order to recover but it did not similarly charge that the contributory negligence, in order to deny recovery to the plaintiff, had also to be a proximate cause of the accident. While it is true we have numerously held that the slightest negligence of contributory negligence will prevent a verdict for the plaintiff, we have made it quite clear that that slightest negligence must contribute to the happening of the culminating episode of the mishap. A motorist may be driving an automobile equipped with only three wheels when four are required but if he is stationary on the highway and is hit by a car traveling on its wrong side of the road, the three-wheeledness of his car can in no way be regarded as contributing to the accident.
The Trial Court in the case at bar leaned heavily on the barrier of contributory negligence, mentioned it at least a score of times but never once did it say that contributory negligence, in order to prevent the plaintiff from recovering, had to contribute to the accident. In fact, by the process of parallelism it excluded that inescapable requirement.
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