Ritchey v. Cassone
| Decision Date | 18 March 1929 |
| Docket Number | 158 |
| Citation | 296 Pa. 249,145 A. 822 |
| Parties | Ritchey v. Cassone, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 5, 1929
Appeal, No. 158, Jan. T., 1929, by defendant, from judgment of C.P. Lehigh Co., Sept. T., 1926, No. 59, on verdict for plaintiff, in case of Mary A. Ritchey v. William D. Cassone. Affirmed.
Trespass for death of plaintiff's husband. Before IOBST, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $3,600. Defendant appealed.
Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.
Judgment affirmed.
L. H Rupp, of Butz, Rupp & Welty, for appellant. -- Where a person's negligence does not cause or contribute to an injury, no liability arises, and where there is no evidence connecting the negligence of defendant with the injury incurred by plaintiff, defendant is not liable: P. & R.R.R. v. Spearen, 47 Pa. 300; Pittsburgh & Southern R.R. Co. v. Taylor, 104 Pa. 306.
The question of proximate cause is to be left to the jury on all the facts of the case where negligence is alleged, but where the facts are undisputed and an intervening agency is manifest the court may withhold the evidence from the jury and decide it as a matter of law: Hoag v. R.R., 85 Pa. 293.
A. G. Dewalt, of Dewalt & Heydt, for appellee, cited, as to presumption that decedent used all reasonable means to escape: P.R.R. v. Weiss, 87 Pa. 447; Miller v. R.R., 67 Pa.Super. 249; Sontum v. Ry., 226 Pa. 230; Woodruff v. R.R., 231 Pa. 640; Hugo v. R.R., 238 Pa. 594; Patterson v. Ry., 210 Pa. 47.
As to proximate cause: Sewell v. Moore, 166 Pa. 570; Pittsburg v. Grier, 22 Pa. 54; Vallo v. Express Co., 147 Pa. 404; Gudfelder v. Ry., 207 Pa. 629; P.R.R. v. Hope, 80 Pa. 373; Hoag v. R.R., 85 Pa. 293; Boggs v. Tea Co., 266 Pa. 428; Howarth v. Express Co., 269 Pa. 280; Murray v. Frick, 277 Pa. 190; P.R.R. v. Kerr, 62 Pa. 353; Bunting v. Hogsett, 139 Pa. 363.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Plaintiff instituted proceedings to recover damages for herself and three minor children for the death of the husband and father, James I. Ritchey, fatally injured by falling from a firemen's ladder while attempting to escape from the fifth floor of the Lafayette Hotel at Allentown, in which he was a guest, during a fire that destroyed the entire building, of which defendant was at the time owner and operator. The jury found in favor of plaintiff and awarded damages, and the appeal here is from refusal of the court below to enter judgment n.o.v. for defendant.
We have gone over the record with care, and fail to find that the facts established by the evidence sustain a single assignment of error alleging absence of proof tending to establish negligence on the part of defendant. Appellant's counsel in their printed brief brush aside controlling facts unquestionably established by evidence, assume that plaintiff's case is based on presumptions merely, and claim the only facts proven are that deceased found, while the fire was raging, a fire ladder against the building outside the window of his bedroom and attempted to use it as a means of escape; that he was safely outside the hotel when he lost his hold on the ladder and fell to the ground; that the fall caused his death and consequently the proximate cause was deceased's falling from the ladder and not the consequence of negligence on the part of defendant. There was thus, according to this reasoning, the intervention of an independent act on the part of deceased, disconnected with and unrelated to any dangerous condition created by negligence of defendant. But we are far from dealing merely with presumptions in this case. There is unquestionably a sufficiency of reliable evidence upon which the jury could base their finding and which fully justified the court below in its refusal to disturb that verdict.
The hotel building in question was an old structure, five stories high, with a stairway and elevator, each reaching from the first to the fifth floor and a hallway on each floor, upon both sides of which bedrooms opened, including that on the fifth floor occupied by Ritchey. At the end of the hallway was an entrance to the fire escape platform, closed off by a window of two parts, in each of which was a pane of glass, the lower part being nearly two feet from the floor of the hall, and to reach the fire escape either the upper portion must be lowered or the lower part raised. The two parts of this window were closed and fastened, as plaintiff claims, by a latch, and it is contended for plaintiff that on the night of the fire the window was thus closed and latched and that Ritchey, discovering his peril, rushed to this entrance to the fire escape, but being unable to open the latch, was compelled to seek other means of flight and was obliged to attempt to escape by means of the fire ladder, from which he fell. The evidence as to the latch in question and its condition at the time of the building's destruction was conflicting. One witness, a guest at the hotel, occupying a room near Ritchey's, testified that on the afternoon some hours before the fire, which broke out about 2:30 in the morning, examined the window at the fire escape and found each part fastened by a latch that was rusty and old. Another witness, also a guest having a room on the same floor, when he saw flames reaching that hall, rushed to the fire escape entrance and finding it impossible to open the latch, broke the glass and succeeded in reaching safety by way of the fire escape. On the other hand, defendant and witnesses called in his behalf testified that while there was a latch to the window opening on the fire escape, the catch had been broken off before the fire and could not be used to fasten the two parts of the window.
The immediate question at this point is, what were the acts and movements of deceased in his efforts to escape from the burning building? From the uniform testimony of witnesses who escaped from the fifth floor during the fire, it is plainly evident that when Ritchey found himself in danger, there was no other way to safety remaining except by the fire escape for at that moment flames were coming up the stairway and also the elevator shaft. Did he attempt to reach safety by the remaining means open to him? It is...
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