Paget v. Girard Trust Co.

• Decision Date: 12 December 1910
• Docket Number: 83-1910
• Citation: 44 Pa.Super. 596
• Parties: Paget v. Girard Trust Company, Appellant
• Court: Pennsylvania Superior Court

44 Pa.Super. 596

Paget v. Girard Trust Company, Appellant

No. 83-1910

Superior Court of Pennsylvania

December 12, 1910

Argued October 13, 1910

Appeal by defendant, from judgment of C.P. No. 5, Phila. Co.-1907 No. 1,190, on verdict for plaintiffs in case of Albert Paget and Mary Hannah Paget, his wife, in right of Mary Hannah Paget, and Albert Paget in his own right v. Girard Trust Company, trustee under the will of Thomas H. Powers deceased.

Trespass to recover damages for personal injuries. Before Martin, P J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for Albert Paget for $ 50.00 and for Mary Hannah Paget for $ 150. Defendant appealed.

Error assigned was in refusal of binding instructions for defendant and in refusing to enter judgment for defendant n. o. v.

Reversed.

A. H. Wintersteen, for appellant. -- The plaintiff was a trespasser, to whom the appellant owed no duty: Thompson v. R. R. Co., 218 Pa. 444; Gramlich v. Wurst, 86 Pa. 74; Hardcastle v. Ry. Co., 4 Hurl. & N. 67; Knight v. Abert, 6 Pa. 472; Gillespie v. McGowan, 100 Pa. 144; Baltimore & Ohio R. R. Co. v. Schwindling, 101 Pa. 258; Rodgers v. Lees, 140 Pa. 475; Moore v. R. R. Co., 99 Pa. 301.

The defendant was entitled to binding instructions or to judgment non obstante veredicto: Lonzer v. R. R. Co., 196 Pa. 610; Holland v. Kindregan, 155 Pa. 156; Cromley v. R. R. Co., 211 Pa. 429; Shannon v. McHenry, 219 Pa. 267.

John J. Sullivan, for appellees. -- The defendant did owe the plaintiffs a duty in the premises: Rachmel v. Clark, 205 Pa. 314; Grier v. Sampson, 27 Pa. 183; Schilling v. Abernethy, 112 Pa. 437; Myers v. Snyder, Brightly, N. P. 489; Duffy v. Sable Iron Works, 210 Pa. 326.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

MORRISON, J.

The material facts established by the testimony are concisely stated by counsel for appellant in his history of the case, to wit:

" Mary Hannah Paget, the legal plaintiff's wife, in the afternoon of October 27th, 1907, fell through a closed cellar door on property of the defendant, No. 4300 Ridge Avenue, Philadelphia. She was walking, with her husband and two other persons, east on Ridge Avenue. It was raining. To escape from the rain, without any invitation or knowledge on the part of the defendant, she took shelter under a shed upon the defendant's property, and attempted to stand upon a closed cellar door occupying part of the space under the shed. The cellar door broke under her, and she was precipitated below. The sidewalk at the place of the accident was thirteen feet wide. The defendant's house line recedes at the point seven feet four inches from the building line, leaving a space of twenty feet four inches between the house line and the curb. The outer edge of the cellar door was one foot nine inches inside of the building line, and was raised three inches at the lower end and from seven to nine inches at the house line end. From the outer edge of the cellar door to the curb there was a space of fourteen feet nine inches which included the sidewalk of thirteen feet. The injured woman, as stated, leaving the sidewalk, stepped under the shed, and up upon the closed cellar door, which gave way under her. The plaintiff claimed negligence on the part of the defendant in maintaining an unsafe cellar door. The defendant asked for binding instructions in its favor, on the ground that no negligence qua the injured party was shown, she being a trespasser. The trial judge, in his charge, left the question of negligence to the jury, and also submitted to it whether or not the injured woman was guilty of contributory negligence." The facts as above set forth were so clearly established by the testimony that they seem to have been adopted by the court and the respective counsel at the trial of the case. In our opinion the jury ought not to have been permitted to go outside of those facts in finding their verdict.

It is true that in his argument counsel for appellees now seeks to raise a question as to whether the testimony warrants the assumption that there was a three inch rise, above the pavement, at the outer edge or end of the cellar door. Upon this question the trial judge, in referring to the plan of the cellar door prepared by an engineer, said to the jury: " Instead of placing it flat on a level with the sidewalk, he raised it three inches at the lower end and seven or nine inches at the house line, so that anyone who walked upon the door stepped up at least three inches to get on it. From the outer edge of the cellar door to the curb there was a space of fourteen feet nine inches of pavement for people to walk and stand upon." We think the testimony fully warranted the trial judge in so saying to the jury and it does not appear that counsel for appellees took any exception thereto at the trial. Therefore we feel quite safe in assuming that the trial judge was right in his instruction to the jury as to the elevation of the cellar door above the sidewalk and pavement. Moreover, the testimony referred to for the purpose of arguing that the elevation of the cellar door was in dispute is so vague and uncertain that a jury should not be allowed to find a fact upon it as against the clear and precise testimony on that question by other witnesses. " When upon all the evidence no question of fact is left in doubt the trial judge should direct the verdict:" Cougle v. McKee, 151 Pa. 602. See also Holland v. Kindregan, 155 Pa. 156; Cromley v. Penna. R. R. Co., 211 Pa. 429. It thus appearing, when the testimony was all before the court and jury, that Mrs. Paget had fourteen feet and nine inches in width of smooth sidewalk to walk upon, and that the cellar door was under a shed or awning on appellant's private property, and that it was above the level of the pavement, and that neither the appellant nor the tenant, in any manner, gave her any invitation or inducement to go upon said door, counsel for appellant took the position that Mrs. Paget was simply a trespasser upon appellant's property, and it owed her no duty under the circumstances, and requested the trial judge to say to the jury that, " under all the evidence the verdict should be for the defendant." This point was refused, and the questions of negligence of the appellant and contributory negligence of Mrs. Paget were submitted to the jury and they found in favor of the plaintiffs. Counsel then moved the court to certify the whole record and enter judgment thereon in favor of defendant non obstante veredicto. The court having refused the latter motion and granted judgment on the verdict, counsel for the appellant asked for an exception, which was granted, and the defendant appealed to this court.

The errors assigned here are: (a) the refusal of a binding instruction in favor of defendant, and (b) the refusal of judgment non obstante veredicto.

The controlling question raised by this appeal is, Was Mrs. Paget a trespasser to whom the appellant owed no duty in the premises? In our opinion, under the conceded facts in the case, the great weight of authority requires this question to be answered in the affirmative, and, therefore, the court erred in not granting judgment in favor of the defendant non obstante...