Hilscher v. Ickinger
| Decision Date | 30 December 1960 |
| Citation | 194 Pa.Super. 237,166 A.2d 678 |
| Parties | Helen HILSCHER, Widow, v. Fred ICKINGER and Carletta, his Wife, Appellants. |
| Court | Pennsylvania Superior Court |
Application for Allocatur Granted and Appeal Allowed Feb. 27 1961.
Michael A. Foley, Philadelphia, for appellant.
Alan Kahn, Marvin Lundy, Winokur & Kahn, Philadelphia, for appellee.
Before RHODES, P. J., and GUNTHER, WRIGHT WOODSIDE, ERVIN, WATKINS and MONTGOMERY, JJ.
This is an appeal by the defendants from the refusal of the court below to grant judgment n. o. v., and from the granting of a new trial for inadequacy of a jury verdict of $3,000 in a trespass action.
Helen Hilscher, a 70 year old widow, visited Carletta and Fred Ickinger, her daughter and son-in-law, at their home, 2656 South 72nd Street, Philadelphia, on May 12, 1957. She arrived between 6 and 7 o'clock in the evening and left about 11:45 p. m. An open concrete porch in front of the Ickinger house is separated from the porch of the adjoining premises by an iron railing which extends from the wall of the house to the front edge of the porch and down a flight of three steps to a pavement below. The railing is supported by metal uprights imbedded in the concrete porch and steps.
When the plaintiff, with a plant in her right hand and a pocketbook in her left hand, stepped off the porch to the top step, she 'hit this hard object that was there, and it twisted [her] foot and down [she] went.' The plaintiff suffered injuries in her fall for which she brought this action against her daughter and son-in-law who owned the premises where she fell. The plaintiff apparently stepped upon a wooden wedge, approximately 4 1/2 inches long 1/2 inch wide and tapering from 1/2 inch thick to paper thin which came from between the upright bars of the railing and one of the concrete steps, where it had been first driven into place by Fred Ickinger three or four years before in order to steady the railing and keep it firm.
The plaintiff looked at the step and did not see the wedge when she went up the steps that evening. There was no evidence from which it could be inferred that the defendants had either actual or constructive notice of the presence of the wedge on the step. See Lanni v. Pennsylvania R. R. Co., 1952, 371 Pa. 106, 110, 88 A.2d 887.
As a social visitor at the home of her daughter, the plaintiff was a gratuitous licensee, Restatement of Torts § 331, Comment (a)(3), and was entitled at most to knowledge of such dangerous conditions as the defendants knew. Restatement of Torts § 342, Comment (c); Matthews v. Spiegel, 1956, 385 Pa. 203, 122 A.2d 696.
Recognizing that the defendants had no notice of the presence of the wedge on the step, the court below, nevertheless, refused the motion for judgment n. o. v. stating as follows: '* * * there was evidence from which the jury could find that the manner of the block's insertion between the post and the step riser, which the defendant described as being merely hammered into place, was itself negligent, and, because of the likelihood of the block's falling out with shaking and vibration of the railing, the whole arrangement formed a condition dangerous to anyone entering upon the steps in the dark, as the plaintiff here did.'
During the three or four years that the wedge was in place, there was one occasion when it was dislodged by children, who had rocked the railing so severely that the defendant left the inside of his home to 'raise Cain' with them. This, the court below concluded, put the defendants on notice that the wedge was negligently inserted and constituted a dangerous condition which the defendants should have foreseen.
Although we consider the question of liability to be close, the majority of this Court is of the opinion that the evidence was sufficient to submit the question to the jury. Judgment n. o. v. should be entered only when the lack of negligence or the presence of contributory negligence is so clear that reasonable minds cannot differ concerning it. Jordan v. Kennedy, 1956, 180 Pa.Super. 593, 596, 119 A.2d 679.
The question of the plaintiff's contributory negligence is not free from doubt, but was for the jury. She testified that she was sure that she had hold of the railing immediately before she fell, but at the pretrial examination she said under oath that she did not have hold of the railing, was walking in about the middle of the steps and 'did not go to the railing,' she 'never bothered with the railing.' She testified that the light from the street enabled her to see the front part of the step but that she saw only about half way back, and thus could not see the part of the step where the testimony indicates she stepped on the wedge.
It is our duty to review the evidence in the light which would be most likely to support the verdict. In doing so, we have concluded that the verdict should be sustained. We are all satisfied that the granting of a new trial for inadequacy of verdict was an abuse of discretion and must be reversed.
The verdict was for $3,000. The plaintiff's medical expenses were $796. Prior to her injury she had been a practical nurse, but had earned nothing in 1957 or 1956 and had earned only $94.70 in 1955 and $640 in 1954.
As she had earned less than $100 in a period of nearly 2 1/2 years prior to the accident, when she was 70 years of age, the jury was justified in finding her loss of earnings and earning power were negligible. She undoubtedly suffered pain and will continue to suffer some discomfort and disability.
The mere fact that a verdict is low does not mean that it is inadequate. Compromise verdicts are both expected and allowed: Karcesky v. Laria, 1955, 382 Pa. 227, 114 A.2d 150. 'The compromise may arise out of damages or negligence or the balance of evidence concerning either or both, and the grant of a new trial may be an injustice to the defendant rather than an act of justice to the plaintiff.' Elza v. Chovan, 1959, 396 Pa. 112, 115, 152 A.2d 238, 240.
Although appellate courts support the action of a trial court in granting a new trial unless there is clear abuse of discretion, they do not abdicate their reviewing function in such cases. This Court has the duty to determine from the record whether or not the jury's verdict was so contrary to the evidence as to shock one's sense of justice and to make a new trial imperative. Ropele v. Stewart, 1958, 185 Pa.Super. 522, 531, 532, 137 A.2d 895; Elza v. Chovan, supra, 396 Pa. at page 117, 152 A.2d at page 241; Decker v. Kulesza, 1952, 369 Pa. 259, 263, 85 A.2d 413.
Where the liability of the defendants is not free from doubt, the jury has a time honored right to render a compromise verdict which the courts generally sustain when it is substantial. Padula v. Godshalk, 1960, 192 Pa.Super. 618, 625, 161 A.2d 919; Simpkins v. Richey, 1960, 192 Pa.Super. 46, 49, 159 A.2d 17.
The plaintiff argues that since the defendants offered no testimony (defendant, Fred Ickinger, was called by the plaintiff on cross-examination) the verdict could not be looked...
To continue reading
Request your trial