McKown v. Demmler Properties, Inc.

• Decision Date: 09 November 1965
• Citation: 419 Pa. 475,214 A.2d 626
• Parties: Thomas A. McKOWN, Jr. v. DEMMLER PROPERTIES, INC., a Corporation, Appellant, and Hende-Jon Furniture Showrooms, Inc., a Corporation. Thomas A. McKOWN, Jr. v. John SCHURKO. Appeal of DEMMLER PROPERTIES, INC., a corporation.
• Court: Pennsylvania Supreme Court

Page 626

214 A.2d 626

419 Pa. 475

Thomas A. McKOWN, Jr. v. DEMMLER PROPERTIES, INC., a Corporation, Appellant, and Hende-Jon Furniture Showrooms, Inc., a Corporation.

Thomas A. McKOWN, Jr. v. John SCHURKO.

Appeal of DEMMLER PROPERTIES, INC., a corporation.

Supreme Court of Pennsylvania.

Nov. 9, 1965.

Rehearing Denied Dec. 16, 1965.

William C. Walker, Dickie, McCamey & Chilcote, Pittsburgh, for appellant.

Robert B. Ivory, Paul E. Moses, Evans, Ivory & Evans, Joseph F. Weis, Jr., Weis & Weis, Pittsburgh, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

MUSMANNO, Justice.

Thomas A. McKown, Jr., the plaintiff in this case, was injured when he walked into a building at 100 Ross Street in Pittsburgh, owned by Demmler Properties, Inc., the defendant, and fell. He brought suit in trespass against Demmler ¹ and recovered a verdict of $15,000. He moved for a new trial on the basis that the verdict was inadequate. The defendant moved for judgment n. o. v. The Trial Court ordered a new trial and refused judgment n. o. v. The defendant appealed.

The plaintiff McKown was a painting estimator employed by a Neiser Company which had done some work for John Schurko, president of the Hende-Jon Furniture Showrooms, Inc., which was negotiating with Demmler, owner of the building on 100 Ross Street, to lease the building and possibly later purchase it. Having ascertained from the telephone book that Schurko had offices in the Demmler Building (we will so refer to it), he went there on October 1, 1959, to talk with Schurko. He entered through a door on Ross Street and noted that he was in a loading area with a loading platform to the rear. The area was partially lit up by an electric bulb and by light coming through a window and firedoors. The lower Court describes in the following language what happened:

'While the lighting furnished by the above sources prevented the area from being in pitch darkness, the light was dim and because of shadows, misleading or deceptive. After allowing his eyes to adjust to the dimness of the loading area, plaintiff proceeded toward the window, bearing somewhat to his right. He was watching the floor where he was going and he though he could see but was deceived. After proceeding some six feet, he fell off the edge of the offset. Plaintiff had never been in the building before. He knew that the platform narrowed somewhere ahead and, quite properly, was looking for the offset when the accident occurred. He testified that conditions were such that: 'I thought I could see where I was going but I couldn't'.'

It is the contention of the defendant that the plaintiff was a trespasser or, at best, a gratuitous licensee and as such the defendant violated no duty owing to him. It points out that Schurko did not in fact have an office in the building. (He was to McKown was not a trespasser. He was legitimately on the premises, not only for the purpose of seeing Schurko but also to look over the building itself since he intended to solicit work in connection with the remodeling of the building by Hende-Jon Furniture Showrooms, Inc. As a business invitee, McKown had the right to expect that he would not be injured as a result of affirmative negligence on the part of the defendant. The defendant knew of latent defects in the Demmler Building but made no effort to warn lawful visitors of what to expect. In that failure it was liable for injuries resulting from those defects. (Matthews v. Spiegel, 385 Pa. 203, 122 A.2d 696.)

move in later although McKown did not know this.) But this cannot make McKown a trespasser if he had every reason to believe Schurko actually was in the building. There would be no occasion for McKown to conclude that the telephone company and Schurko, together with Demmler, were in conspiracy to deceive him as to the whereabouts of Schurko.

The defendant urges that by proceeding forward in a dim light McKown was guilty of contributory negligence. What McKown did was not so opposed to common prudence that he could be declared guilty of contributory negligence as a matter of law. It is true that a more cautious person The darkness here was not so engulfing as to command immobility. McKown was reasonably justified in assuming that, with care appropriate to the circumstances, he could reach his destination without mishap. Whether his boldness exceeded good judgment was a matter of determination by the jury. In Slobodzian v. Beighley, 401 Pa. 520, 164 A.2d 923, this Court stated:

might have hesitated to go forward when he was not absolutely positive of what lay ahead or beneath his feet. On the other hand if all mankind depended on those who ask for a guarantee of security with each footstep, there would be little progress in the world. There is scarcely a task that does not present some obstacle to overcome and some darkness to penetrate.

"The question of plaintiff's contributory negligence was undoubtedly for the jury. There is a multitude of cases of this type to be found in the reports, but they necessarily depend largely upon their individual facts. However, analysis would seem to justify their classification into two groups. There are those in which a person wanders around in a place absolutely dark and where, though not a trespasser, there is no reasonable necessity for his presence. In such cases recovery is denied * * *

There are other cases where there is some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light. Under such circumstances, contributory negligence will not be declared as a matter of law * * * It may be stated, therefore, that the controlling factors in determining the question of contributory negligence in accident cases of this nature are the degree of darkness and the justification for the injured...