Hoffner v. Bergdoll

• Decision Date: 03 January 1933
• Docket Number: 235-6
• Parties: Hoffner et ux. v. Bergdoll, Appellant
• Court: Pennsylvania Supreme Court

164 A. 607

309 Pa. 558

Hoffner et ux. v. Bergdoll, Appellant

Nos. 235-6

Supreme Court of Pennsylvania

January 3, 1933

Argued December 2, 1932

Appeals, Nos. 235-6, Jan. T., 1932, by defendant, from judgment of C.P. No. 2, Phila. Co., March T., 1930, No. 242 on verdicts for plaintiffs, in case of Joseph B. Hoffner et ux. v. Erwin R. Bergdoll. Reversed.

Trespass for personal injuries. Before LEWIS, J.

The opinion of the Supreme Court states the facts.

Verdicts for $5,000 and $10,000, remitted to $2,000 and $8,000 respectively and judgments thereon. Defendant appealed.

Errors assigned, inter alia, were refusal of judgments n.o.v quoting record.

The judgments are reversed and judgment is here entered for the defendant.

David R. Griffith, Jr., for appellant. -- Plaintiff was contributorily negligent: Robinson v. Ice Co., 292 Pa. 367; Goff v. Boro., 299 Pa. 343.

Lewis J. Finestone, for appellee. -- Where men may honestly differ on the question of negligence, the matter is for the jury: Cody v. Venzie, 263 Pa. 541; Schwartz v. Phila., 103 Pa.Super. 362; Yuhasz v. Construction Co., 305 Pa. 166.

Before FRAZER, C.J., SIMPSON, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE LINN:

Plaintiffs, husband and wife, have judgment for personal injury sustained by the wife. The question is whether defendant's motion for judgment notwithstanding the verdict should have been granted. Appellant contends that there is no evidence of negligence, and that plaintiff's contributory negligence is clear. He was sued as owner of premises numbered 116 to 122 North 8th Street, Philadelphia, a large four-story building fronting on 8th Street and bounded on the south by Appletree Street, an alley 10 or 12 feet wide. The fourth floor was leased to one Rosengarten, for the manufacture of paper boxes. The second floor was leased to a dress manufacturer. Of the first floor, only a small area fronting on 8th Street was leased to a "soft-drink concern." The rest of the building was unoccupied save that, apparently by defendant's leave, Rosengarten used part of the unleased portion of the first floor (in his words) "to keep card boxes there -- they were pretty unhandy to bring up, and I used to store them there and take them upstairs gradually."

In the extreme southwestern corner of the building, on the alley front, was a freight elevator, described in the evidence as "something like 8 or 10 feet," and operating in a space "enclosed on four sides." From the alley, access to the elevator was obtained by a door (described "as wide as the elevator floor") which was opened by raising it; one stepped directly from the alley to the elevator floor. Defendant's lease to Rosengarten provided: "The lessee shall be entitled to the use of the freight elevator during working hours as all other tenants of the same building, the lessor shall also see that the tenants shall be provided with the proper amount of heat during necessary time, the lessor shall also see that the tenants shall be provided for with repairs when necessary:" Lerner v. Bergdoll, 285 Pa. 193, 195, 131 A. 670. No operator was furnished for the elevator; it was operated by or on behalf of the tenants themselves. A stairway, entered from 8th Street, at the northeast corner of the building, furnished general access for all purposes to all the floors above the first.

Mrs. Hoffner, who shall be referred to as the injured plaintiff, was employed by Rosengarten on the 4th floor, November 14, 1929, to operate a machine used to make paper boxes. The first time she went to her work she walked up the stairway "around ten-thirty;" she testified that she found on it some intoxicated men of whom she was afraid but she walked down the same stairs, without difficulty, at quitting time. On the next morning, on her way to work, she met William Green, also employed by Rosengarten; Green said, "Come on, I'll take you up on the elevator," and she accepted his invitation. The door leading from the alley to the elevator was then open, and, they stepped on the elevator and went to the fourth floor, Green operating the car. At the end of the day Green brought her down and she left by the alley. On the morning of the 16th she again met Green who again invited her to go up on the elevator with him. When they reached the elevator door this time, however, it was closed and Green could not open it. About 3 feet from the elevator door, was a door of ordinary size giving entrance to the first floor of the building. Green opened that door and entered, intending to reach the elevator on the side opposite the alleyside, and the injured plaintiff followed him in. After groping about in the dark, they passed through the fire door, apparently separating the elevator from the rest of the first floor, when plaintiff, thinking the elevator was in place, stepped where she thought it might be, and fell down the elevator shaft and was injured. Defendant put in no testimony.

There is evidence to support a finding that defendant landlord was negligent in allowing the elevator to remain out of order in the manner and for the period and with the notice from the city authorities described in the evidence, so that the gate, which normally would have closed the shaft when the car was at another floor, did not close, leaving, on this morning, no barrier to prevent stepping into the shaft. But as the injured plaintiff was so clearly guilty of contributory negligence as to bar recovery, we shall assume, for present purposes, the landlord's liability to licensees for the negligent condition of the premises without discussing the basis for it: Fordyce v. White Star Bus Lines, 304 Pa. 106, 110, 155 A. 98. In dealing with her conduct, for present purposes, we also assume, without discussion, that in entering the building from the alley, instead of by the regularly provided stairway, she was a licensee (cf. Silver v. Hause, 285 Pa. 166, 171, 131 A. 668) and not a trespasser as appellant contends.

Green and the injured plaintiff furnish the only account of the occurrence. Both agree that when they entered from the alley they were in a place so dark that almost nothing could be seen, this condition with its attendant danger, was obvious to both from the time that the injured plaintiff closed, or almost closed, the door behind her. Before that, she had never been on any part of the first floor. To reach the point where they intended to get on the elevator, it was necessary to walk forward a short distance and then turn to the left -- perhaps 15 steps in all. Green walked ahead of her. He said, "I walked around to what you might call the fire doors in front of the elevator. These doors were open. One door was open against the wall, and the other door was open just enough to start in to the entrance of the elevator shaft. I walked in there. I had to feel with my hand for the door [apparently meaning the elevator gate, which was out of place] and get hold of that back wall to avoid falling down myself. There was nothing there to prevent you from going straight down into the hatchway." The elevator was at an upper floor. In the darkness, Green seems to have reached into the elevator shaft to grasp the rope controlling the operation of the elevator to bring it down to the first floor. He states that "it was exceptionally dark in the elevator [shaft] and you couldn't see anybody . . . so I turned around to say something to [her] and not finding her, just at that time I heard a moan from somewhere down in the cellar." He could not see her then. He said: "There wasn't any [light] that I know of, no artificial light." No windows "threw any light on the first floor." He had been employed by Rosengarten for about six months before, and used the elevator almost daily. In response to another question, he said: "No, I wouldn't say that you couldn't see anything, but it was dark." Asked whether he could see the rope for which he reached he said: "No I had to feel around for it that morning." "I had, you know, an approximate idea just about where it was." The learned trial judge asked: "Q. When this lady walked into this elevator shaft, you were leaning down over the shaft, were you? A. Yes, sir. Q. Pulling the rope? A. Pulling the cable down. Q. You say the shaft was dark? A. Yes, sir. Q. Well, if she had looked, couldn't she have seen that there was no elevator there? A. I couldn't see the elevator myself. I couldn't see the elevator floor there myself. Q. You mean you looked down right in front of you? A. No, sir, you couldn't see the elevator. Q. What prevented you from falling? A. I held on to the -- I had like my fingers behind the doorway so that I wouldn't fall down the shaft. . . . Q. Couldn't you see the black space of the pit down below? A. It was too dark. . . . Q. But it was so dark you couldn't see? A. Absolutely. Q. Couldn't you see whether there was a floor of an elevator or a bottomless pit? A. No,...