Stevenson v. Pennsylvania Sports & Enterprises, Inc.

• Citation: 372 Pa. 157,93 A.2d 236
• Decision Date: 25 November 1952
• Docket Number: 7415
• Parties: STEVENSON v. PENNSYLVANIA SPORTS & ENTERPRISES, Inc.
• Court: United States State Supreme Court of Pennsylvania

93 A.2d 236

372 Pa. 157

STEVENSON v. PENNSYLVANIA SPORTS & ENTERPRISES, Inc.

No. 7415

Supreme Court of Pennsylvania

November 25, 1952

Argued October 7, 1952

Appeal, No. 199, March T., 1952, from judgment of court of Common Pleas of Allegheny County, Oct. T., 1949, No. 954, in case of Harold E. Stevenson v. Pennsylvania Sports and Enterprises, Inc. Judgment affirmed; reargument refused January 6, 1953.

Trespass for personal injuries. Before EGAN, J.

Verdict for plaintiff in the sum of $12,000.; verdict remitted to $9,000. and judgment entered thereon. Defendant appealed.

Judgment affirmed.

James J. Burns, Jr., for appellant.

John E. Evans, Jr., with him Evans, Ivory & Evans, for appellee.

Before DREW, C.J., STERN, STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. JUSTICE CHIDSEY

Plaintiff obtained a verdict for $12,000 for injuries sustained when he fell down a flight of four steps located in the balcony of defendant's sports amphitheater, called The Gardens located at Fifth Avenue and Craig Street, Pittsburgh. Defendant filed motions for a new trial and judgment non obstante veredicto . The lower court denied the motion for judgment non obstante veredicto and refused the motion for a new trial provided the plaintiff filed a remittitur of all of the verdict in excess of $9,000, which was done. Defendant now appeals, asking for (a) judgment non obstante veredicto; (b) a further reduction in the verdict; (c) a new trial.

On January 27, 1949, plaintiff, a manager for a chair rental concern, together with two assistants, drove to defendant's amphitheater to pick up some chairs owned by the concern which had been rented to the defendant for use the preceding evening. The west end of the amphitheater faces Craig Street while the south end runs along Fifth Avenue. After parking their truck on Fifth Avenue, the three men proceeded to load the chairs. Upon investigation plaintiff found that seven or eight of the chairs were missing. Thereupon he went to the office of the manager of the amphitheater and was told by him to look around for the chairs. (It is not disputed here that the plaintiff was a business invitee.) The amphitheater had the customary tiers of seats with a balcony, surrounding an arena. A search of the lower levels did not reveal the missing chairs, so plaintiff went to the balcony in his effort to find them. To the rear of the last seats in the balcony there was a walkway or aisle about three feet wide. Plaintiff was on the north side of the building and was walking from east to west. Consequently on his right was the wall of the building and on his left were the balcony boxes. As he was walking along looking for his chairs, he fell down a flight of steps.

It developed that this flight of steps, about 40 inches in height, led down to a platform which ran for a distance of approximately 16 feet along and behind the press box and then another flight of steps would bring a person walking in the direction that plaintiff was going, up to the same level as before. A bannister or railing ran along the left side of the aisle behind the boxes. The back of the press box was six feet high (measured from the platform floor), and was of solid wood. The floor of the platform was concrete and was painted dark red.

The lighting in the area became the crucial issue in the case. It was variously described by the witnesses but all agreed that the only lights which were on were the lights over the center of the building where a hockey team was practicing in the arena. Plaintiff testified that "The general appearance was that the aisleway continued on straight through." and "The areaway there, due to the press box interference created a shadow in that particular section.". He also testified: "Q. As you walked towards that area going in the direction of Craig Street, what was the general appearance of the aisle as you reached that place? A. The general appearance was a continuation of the aisle as I walked through.... Q. Any shadow or any darkness that there was as you walked along was not noticed by you until after you fell; isn't that correct? A. I can only answer that as I did before, to me it led up as a straight areaway, the same as that in which I had been walking.... Q. Will you answer that? And then you can make any explanation you want. A. I will have to answer that the same as I have answered the last two or three, that it all looked like a continuation of that floor." He said there was no natural light inside the arena. Exhibits showing various views of the area were introduced into evidence by counsel for both parties.

We now turn to the contentions of counsel for the appellant. He argues in support of his motion for judgment non obstante veredicto that there was no showing of negligence and that the plaintiff was guilty of contributory negligence as a matter of law.

In order to relieve the defendant of any negligence, counsel points out that the press box which plaintiff claims cast a shadow over the area where he fell was not in front of the steps that led down to the east end of the lower level. However this may be, the press box was so close to this area that the jury could well have found that it cast a shadow and made the area look as though it continued on the level. The testimony is replete with evidence of inadequate lighting in the area. The maintenance man at The Gardens, Mr. Mark, testified that none of the lights available in the area were turned on. The plaintiff testified that there were lights in the area and that immediately after the accident they were turned on and gave sufficient illumination. While difference in floor levels does not in itself consist of negligence ( Strawhacker v. Stephen F. Whitman & Son, 147 Pa.Super. 33, 23 A.2d 349), it is negligence to fail to provide an area where there is a great difference in levels with adequate light so that a person who is properly in the area is warned: Cathcart v. Sears, Roebuck and Company, 120 Pa.Super. 531, 183 A. 113; Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923.

The testimony of the plaintiff quoted in the statement of facts makes it clear that the question of contributory negligence was for the jury. Counsel for the defendant relies upon other testimony of the plaintiff which he contends indicates that the area was so dark that plaintiff should not have proceeded or that the plaintiff was not looking where he was going. Assuming that this testimony does support these contentions, other testimony of the plaintiff supports the opposite conclusion. Where in one part of a plaintiff's testimony he is entitled to have his case submitted to the jury, and in another he is not, it is for the jury to reconcile the conflicting statements: Greene v. Philadelphia, 279 Pa. 389, 124 A. 134; Bisaillon v. Philadelphia Rapid Transit Company, 84 Pa.Super. 153, 156. We therefore are of the opinion that contributory negligence on the part of the plaintiff was for the jury.

The next contention of appellant is that it is entitled to a further reduction in the verdict. Plaintiff suffered a comminuted fracture of the right os calcis or heel bone. He remained in the hospital about ten days during which time a cast was put on, extending above his knee. This cast remained on for about two and a half months. Plaintiff did not return to work until July 1, 1949. At that time he still had difficulty with his foot and had previous to that time been given physiotherapy treatments. Dr. Faix stated that there was considerable damage to the soft tissue and that after the cast was removed plaintiff had severe swelling for several months. Dr. Epstein examined the plaintiff two months before trial (the trial was in February, 1952) and testified that at that time plaintiff had a partial disability "... estimated at 20 per cent, for the type of work which he was doing at the time he was hurt.". He further said that the condition was "Possibly permanent.". ^[1] Plaintiff had lost wages amounting to about $1,500 ^[2] and had medical and hospital expenses of $665.50. Under such circumstances the trial judge thought that $9,000 was not excessive, and we agree.

Appellant has raised other points which he contends entitle him to a new trial. First, he contends, that appellee did not produce any evidence of loss of wages and therefore it was error to allow the jury to so find. The testimony in this connection was that plaintiff received the same salary during the five months he was disabled as he did before the accident. He contended, however, that this was in the nature of a gift and was not for services rendered. In Schwoerer v. Philadelphia, 167 Pa.Super. 356, 360, 74 A.2d 755, the Court said: "Whether a plaintiff may recover loss of wages from a tortfeasor where the injured party has been paid the wages by his employer is to be determined by the evidence. The rule of law is clear: if the payments by the employer were a gratuity or gift, claimant may recover for loss of wages against a third party tortfeasor. The generosity of the employer does not redound to the benefit of the wrongdoer.". There is no doubt that in the instant case there was sufficient evidence that plaintiff did not in any manner perform his duties after the accident to the same extent as he did before. Plaintiff's wife variously testified that he only answered 'phone calls when they were referred to him from the shop and that he went out several times when it was necessary to solicit orders. The court below permitted the jury to find whether the money paid to him was a gift or wages. Although the plaintiff's testimony that the money paid to him was a gift did not make it so, (Pensak v. Peerless Oil Company, 311 Pa. 207, 166 A. 792), there was ample evidence here from which the jury could...