*1 error, instant case not which, a “clear being case” on its face, supports to refusal of the lower court remove the we need nonsuit, not consider the other as- signments error having do with the principally proof of damages sustained by appellants. The record indicates extensive damage building and to equipment and material being processed. It will suf- fice say evidence prove submitted to items of damages fell far short of proper admissible testi- mony issue.
Judgment reversed with a venire facias de novo. Mr. Chief Justice Bell, Mr. Justice Jones and Mr. Eagen Justice dissent.
Allison Snelling Snelling, Appellant. Inc., v. Before Bell, C. J., November
Submitted 1966. Rob- O’Brien Eagen, Musmanno, Jones, Cohen, *2 J J. erts, 1967. refused June
reargument Griffith, him Lewis with James Hertmg, E. Dyson ap- for & Hertmg Short, Liebert, Harvey, Bechtle, and pellant. for him Leon Silverman, Khan with W. Spiegel,
S. appellee.
Opinion by 1967: O’Brien, May Mr. Justice death wrongful under brought case was This Penn- of of the Commonwealth statutes and survival of the decedent Maude C. widow Allison, sylvania lasting of After a trial his estate. administratrix and of plain- returned a verdict favor the jury days, of rendered This $65,000. in the amount verdict, tiff eventually separate molded into lump sum, in a wrongful death and action, $3,- sums; $62,000 action. The defendant thereafter in the survival n.o.v. judgment new trial. The motions filed de- conjunction motions and in were denied, amount $5,000 a remittitur was ordered nial, on verdict. The remittitur death wrongful and these verdicts, was entered filed, appeals followed.
On September
Snelling
24, 1960,
defendant,
floors
upper
was a tenant on
Snelling,
one
Inc.,
in Phila-
located at
building
1501 Walnut Street
delphia,
containing
single
building
regular operator
plaintiff’s
car,
which was
employed
approxi-
owner. At
decedent,
building
8:50
arrived
mately
president
vice
of defendant
a.m.,
at the
after
building,
period
short
dur-
and,
waiting a
ing which decedent did
ele-
operate
not arrive
took the elevator
office.
vator,
himself and went to his
*3
(Decedent
due
at work at 8:00
The decedent
a.m.)
a
arrived
an
few
after 9:00
according
minutes
and,
bell
rang the
eyewitness,
elevator
times,
several
then removed the
to the elevator
from
door
a box,
partially opened the elevator
for-
took
step
door,
and fell into an
ward,
shaft
feet
empty
some 15
18
to the basement of the building. Decedent was criti-
injured and
cally
hospital
died
one week later.
“In
motion
considering a
for judgment
n.o.v.,
evidence
all
together with
reasonable inferences there
from is considered in the light most favorable to the
verdict winner.”
v.
Connolly
Phila. Trans.
420
Co.,
Pa.
testimony can- we conclusion With this supported the verdict. not agree. en- electrical T. of James testimony Clark, surrounding the area reveals that
gineer,
along
this,
adequately illuminated,
door
due
exercised
decedent
presumption
low-
for the
provided
his
the basis
care for
own safety,
v.
Murphy
motion.
In
er
defendant’s
court’s denying
(1937),
&
As we said
v. Alexander
Bailey
Co.,
Realty
Pa.
20 A.
:
(1941)
2d 754
“The
error
grievous
plaintiff
made
reasoning
his
accepting
faculties as the sole
ab
safety.
assurer
sence
sufficient
him
light
enable
to see into
*4
he assumed
shaft
that because the outer
mov
door was
able
the elevator must
there. He
im
placed
thus
provident reliance on the perfection of the door-locking
on
mechanism and
defendant’s
No
supervision of it.
man of common caution
rely
will
for
upon
his safety
the
watchfulness
others
his own
are
senses
apprise
him
available
of likely imminent danger.
can
When
individual
assure his own
the
safety by
he must
use of his
do so
senses,
or abide the conse
of his
quences
(Emphasis
carelessness.”
in original)
In Douville v. Northeastern
Pa.
10 A.
W.
Co.,
188,
2d 394
approaches
we said: “. . . a
(1940),
an elevator or an elevator
place
so dark
scarcely anything is visible
risk
does so at his own
while thus
if,
enveloped
injured
he is
darkness,
by
colliding
object
with an
into a
falling
hole,
will be
adjudged
as
contributory negligence
a matter of law. Hoffner et ux. v.
309 Pa.
Bergdoll,
It is to be noted that no aside from the dece- one, permitted dent, to operate the and that elevator, president vice of the defendant so violated doing this rule. His testimony reveals that removed unlocked the key, and took it to the desired elevator, floor. this Assuming conduct was we negligent, are still faced with conduct decedent’s and whether activities constitute contributory as a mat- negligence ter of law.
Mrs. decedent’s was also Allison, employed widow, Alli- building owners Mrs. woman. cleaning son testified that addition cleaning to her duties as she woman, operated also decedent elevator when on vacation. She testified that the decedent had been employed building owners for 9 years very day accident and that occurred, night prior to the in the happening same accident, she, manner as was after customary, building, cleaning took the elevator to the first left the inner floor, gate as the outer open, door could not be if operated inner were closed. gate completely She went on to re- procedure late the in the opening doors in the manner: mornings following It necessary from box near the door to get open door. outer Pressure was heavy applied downward door moved and the a few key, and then inches, *5 at (Mrs. testified key Allison removed. the would lobby light in the point there was sufficient that this there car was the determination whether enable to quite glasses, although he was her husband wore and, opening seeing.) inches, capable door a few After the operator would key and the then be removed would rest open heavy door outer hands both use way. entered that the decedent The record reveals building lighting that conditions were such when George able eyewitness, King, I . . was L. stated: paper easily.” my very reveals He further read building over and came entered the the decedent that standing by alongside the elevator. of him he as rang times, several related that decedent bell He logical infer- “Ray (the only then stated: must be in.” he from remark is that can be drawn this ence referring Snelling, knew R. to Louis whom key “Ray”), from back obtained the went box, opened door the witness the elevator and while standing related him. The further beside witness opened had inserted the after decedent disap- step took a and then forward door, elevator peared. King, also Mr. related cross-examination, operate at he had seen other tenants the elevator times. various
In
if a
Mrs. Allison testified that
connection,
pushed
person
the elevator button which controlled the
buzzer
the elevator
and that
sounded
buzzer,
car,
pushing
lobby
the buzzer
button
could
sounding the buzzer
hear
even
car,
heavy
though the
outer door of the elevator was closed,
away
was as far
as the 4th or 5th
building,
faintly.
albeit
floor
such circum-
credulity to
it strains
believe that
the dece-
stances,
operated
period
this elevator for
dent,
must have
thoroughly
been
and who
years
familiar
n withits
could be unaware that
operation,
*6
that
car
not at
floor.
is
testimony
was
the first
The
case,
That
rang
being
bell several
times.
he must
buzzer
have heard the faint sound of the
sound-
4th
then on the
was
car,
car
and
that
should have
floor,
knew,
known,
at the
level.
lobby
often
We have
said that
there
presumption
is a
a person killed in an
How
accident exercised due care.
as
we said Watkins v.
315
ever,
Prudential
Ins. Co.,
“
Pa.
Judgments reversed here verdict. notwithstanding ant, Mr. Justice Roberts dissents. *7 by Opinion
Dissenting Mr. Justice Musmanno: in this Opinion Majority It to read the enough pro- perceive injustice being case to at once the stark claimed announces. decision op- N. elevator Leroy as an employed Allison was Walnut in a at 1501 single-elevator erator building Philadelphia. Snelling The defendant Street, firm, floor. occupied on fourth offices Snelling, that no tenant had been warned Every building op- to except a licensed was authorized one, operator, September On erate the elevator. the morning president Robert vice of the Snelling Snelling, The arrived at the between 8:30 and 9. building firm, elevator door locked. He obtained from a box at- to the wall of the used building tached rod which he the lock of to unfasten the elevator door. He restored the rod to its and then depository drove the elevator stepped to fourth and let floor, out, the elevator suspended the fourth floor, remain there like Ma- coffin. homet’s first floor
The rod on the would allow anyone fa- building’s with the miliar maintenance to conclude anchored in duly on the ground Shortly Snelling im- floor. after Robert properly duly Leroy removed the elevator, Allison, employed operator, licensed and Hav- arrived. ing every car reason assume that the elevator place in its accustomed on the inserted first he floor, stepped into in- his the lock of the shaft door and thought he what would be floor of the elevator. empty plunged It not there and he down shaft to his death 20 feet below. brought against Snelling
His widow firm suit and the returned a in the verdict her favor appealed sum of $60,000. defendant firm stating Court has rendered Alli- n.o.v. contributory negligence son was as matter of law. Snelling’s taking
Robert action in the elevator with- authority flagrant out negligence, was an act of en- dangering anyone heading the life and limb ground Snelling only office above the floor. Not did possessing violate the law in com- elevator, pounded warning not offense others the build- posted sign, what had done. He he asked ground no one to seal off the floor door of shaft so that no one should enter it. building, Allison
When arrived in there was nothing suggest to him that the elevator would *8 always where found it when he came work morning. in the He used his to unlock ele- the always stepped vator he had as door, done, thought what he be the would as he had been elevator, doing years employed for nine the that he was ele- as operator. vator Never before had the elevator failed Undoubtedly to be at the first floor. to him it would astonishing that the elevator be as should not be there building disappeared overnight. that the should have as says Majority The that Allison was of con- negligence tributory aas matter of law. Was he? Is negligence assume contributory for one to irrefutably ifc pit deep push him into a not will that his fellow-man compulsorily contribu- conclusive it kill him? Is will be tory negligence no one that to assume one away a scaf- floor of brutally the take as to so careless every reason notifying have others, fold without Majority the floor be there? What will to assume negligence contributory to be imposing here is not is contributory negligence which by jury, decided but persons disa- could reasonable is so absolute that gree Majority That is the stand as to its existence. Majority concerned, so far as the takes. Allison, open eyes practically death. into a suicidal walked with arbitrary support determina- not so The record does tion. Majority Opinion quotes stereotyped rule The “ considering ‘In motion for n.o.v., together there- all reasonable inferences
evidence light favorable to the from is considered most ” very Majority ignores verdict but the winner,’ light assertedly ignites. testimony, it There was plaintiff’s side of the the elevator shaft case, engineer An testified not illuminated. electrical well dimly surrounding the area elevator door jury, found lit. The its that the verdict, shaft apparent- adequately Majority illuminated. But the brought light ly so much to the in consider- evidence, enough ing of the verdict it favor that it had winner, the elevator shaft. illumina- to illuminate This over left jury not seen in ad- however, which, tion, hearing the evidence in went court, dition to the physically accident of the evaluated what scene imaginatively Majority only has surmised. Not did surrounding and the see very point evidence at the heard area, existing conditions at the time accident judge, passing trial on this the accident. feature *9 of the said: loca- “The the actual case, jury observed tion of the accident and heard the testimony lighting condition which at the saw was the same they time that decedent was injured. jury could well have drawn the inference that decedent walked dimly lighted area at believing the elevator level in ground-floor and judg- the exercise of his best proceeded ment into the shaft.” empty But the Majority without seeing Court, without elevator, knowing the physical circumstances, declares that it will decide in most light this case favorable to the verdict winner and proceeds then extinguish the lantern of the evidence. on the Sitting Fourth Floor of City maintains that Hall, Majority it can see all the through steel bricks, stone, marble, and mortar which intervene between Hall and City 1501 Walnut perceive and Street, what on the scene did not see. The Majority pene- it can maintains trate the wall of through six which has years, risen since the accident happened, and from the reconstruct, printed page, circumstances of the more accident, than those accurately who were there when it happened who to it testified court before a judge jurors twelve who confirmed what said witnesses the scene of the by visiting accident. judicial This is I to which cannot clairvoyance subscribe.
What the Majority has done here tois render not a non obstante judgment veredicto, judgment non obstante testimonium. It had rendered a evidence! There spite absolutely nothing offers a modicum of the case rationalization far-fetched Majority’s theory. Indeed the evidence logically all inferences derivable therefrom reject Majority’s hypothesis. conclusively The Majority King George speaks standing Alli- beside tragedy occurred, stating son could King light newspaper read lobby of S30 *10 paper noth- has
building. read his he could Whether immediately outside or inside to do conditions self-defeating. testimony King’s is shaft. the elevator presence non- If deceived about was Allison im- King, it presence is because so was of the elevator, in- King so possible been have could to believe empty step ele- an into Allison as to allow human there. King not was if the elevator knew vator shaft King there, not not the elevator was If could see honestly de- persons who on the scene were two makes by the circumstances. ceived question a mistake made that Allison There is toso mistake; was, it an understandable but was compelling speak, logical mistake. an almost a mistake, key inserting years, nine he had been For operations years for nine had started elevator he door, years did ground nine floor. Never those from the begin from the fourth floor, work Snelling taken recklessness, unexcusable had, with tragic morning. As Allison stated, right only If elevator. to run the one No or walked. not the tenants waited there, any away right more to take one had right passenger air would have than a heedless cockpit airplane. Louis of an the controls seize president self-propelling Snelling, of the vice brother the defendant did not take concern, (prior Snelling) dis- he arrived to Robert operator that the not there. Louis Snel- covered easily ling have Robert could took to the stairs, ap- King done. The arrived before witness Allison peared on He made no effort to do the scene. what Snelling had done. He waited ar- Robert Allison’s rival. plaintiff’s point very from
At the worst, view eyes of the the most that law, in the can be said question conduct decedent’s is that it a about the of fact for the con- to determine whether he was tributorily exercise negligent. Only arbitrary intellect can conclude that a custom does nine-year become after an established fact. Montaigne observed, Plutarch had said the same that “Habit thing, second nature.”
Publilius is the Syrus remarked: “Powerful indeed empire of empire habit.” Allison was a citizen of habit. Six for nine days 52 weeks a week, year successive he took from inserted years, box, into the elevator door, stepped the elevator. *11 He did this for continuously and without interruption Can it days. be said because on the 2809th that, he did not day, test what he had never had occasion to test doubt for he before, was so devoid of concern his life that he must be negli- branded the law as gent beyond reason?
The Opinion Majority speaks of where situations recovery permitted was not because the aggrieved per- son walked into an obvious elevator in but danger, those cases the sortie into the elevator a shaft was single occurrence. Those cases have do one with in a who, strange first environment, advanced time into a hazardous situation. Here it not a question of the time; first awas matter of 2000th If for time. 2000 consecutive no days there is rain, one cannot if on be blamed, the 2001st steps day, out a sunshiny day without an umbrella.
In in many of the addition, cases cited Ma- moved victim jority, what practi- amounted cally complete darkness. That was not the case a here. Here it was matter of dim the kind lighting, of lighting, incidentally, which one in observes Opinion Majority throughout, is, ob- shadowy nebulous, fuscating, opaque, umbrageous kind of light- without misleads, which ing intending to. It is like a under lettuce peel leaf. banana Murphy v. quotes Majority from example, For “When follows: Pa. & Sons, Inc., Bernheim proceed with moving must in the dark one is ” way literally around.’ ‘feel his greatest caution idea gives reader the which leaf This is the lettuce because plaintiff not recover in did that case Majority case this cites in dark. he moved point jurisprudential ally cause; as an its ally which, foe, an armored not an it is realism, illogic punctures spear logic, the bubbles with the Opinion. Majority Mur- floating throughout In the phy case the verdict returned we case, affirmed intelligent basis walker on the of the elevator favor honestly decedent as was the misled, that he had been opinion brings powerful crash- case. ground wobbly theo- structure of to the the whole Majority Opinion (later Justice rization in the here, Maxey Justice) dimin said: “When one walks Chief apprehend danger light where he has reason to proceeds, as he and then meets uses best question or not whether he is accident, contributory negligence usually for the jury.” anything like shaft,
An elevator can stand in else, *12 types luminosity. may of three different It en- be veloped may bright in total it shine darkness, forth in light, remain or it can half-concealed and half-disclosed Spangled Banner at McHenry Fort like Star dur- night of that historical bombardment. The 1501 at Walnut Street in was elevator third morning stepped on the that classification Allison in- of that a situation it. On to Chief character,. Justice approach Maxey “Where the elevator said: is dim- may justified lighted, ly thinking a floor is at when in fact it an elevator is absent. his contributory circumstances, negligence such Under question,” citing jury plainly R.C.L. page is sec. 23, 1257.
In the plaintiff ease the instruct- Murphy had been ed sky- to make employer certain to a repairs light over an elevator circum- shaft. In narrating Maxey stances of “he Chief said: accident, Justice plaintiff] open found the entrance thereto [the guard gate lift to down, believing be level with the floor on which time, he at that was he walked bottom through and fell to the opening of the elevator shaft.”
If, a situation like the one just described, case is for the how much more it for the jury, operator where the the ele- deceived into believing vator present because of the action of un- one who, intentionally laid a for him be de- course, trap ceived. explaining probable of mind state the plaintiff Murphy approached elevator, jurist the revered of Lackawanna “When said: County one becomes accustomed after find- long experience to ing elevator shafts it takes safeguarded, naturally that all granted elevator are safeguarded.” shafts
If on his first Murphy, visit to the elevator shaft in that justified ease, the ele- concluding vator shaft was safeguarded, how much more should Allison have had the right assume that in its normal position here was when for years nine been there? always Maxey Chief In the Murphy case, Justice cited the v. of Kinsey Locomobile, case 235 Pa. 95, where verdict Court affirmed a following fall in an un- shaft, stating: guarded question “the of plain- contributory negligence was tiff’s necessarily submitted jury.” to the the case Baker
He cited also v. Ellis, Pa. 64, shaft case, where this an elevator Court also said: “It error for been clear have would judge declare as the plaintiff of law matter con- under the facts negligence tributory they appear *13 the record.” from adept quoting Majority in sentences in For completely theories. its devastate
cases which Co.,W. it cites Douville v. Northeastern stance, approaches an quotes: ... “a Pa. and anything scarcely place in a so dark that shaft thus while if, risk and does so at his own is visible colliding injured by enveloped he is darkness, adjudged object falling into he will be or a hole, contributory negligence guilty of law.” matter of as a this to cite take considerable astuteness It must support Ma- case of a where “darkness” case lighting of jority says that one so brilliant space as the elevator around used witnesses reading library. Court matter of fact, As a af- plaintiff case, in the Douville for the a verdict firmed unanimously: stating case “Under our decisions agree jury made with the statement for the we was by refusing n.o.v.: to enter the court below concluding justified in the entrance ‘The very freight or in a in a shadow, elevator was to the ” light.’ dim Realty Bailey Pa. v. Alexander Co., plaintiff Majority, denied cited also recovery, “If in semi-darkness but this Court stated: sight carefully can and of as he he uses his sense as way’ reasonably if his he can ‘see his believes may may sight not him, of deceives sense question negligence for the and the will be per require possess jury. not man to The law does complete setting visibility in a before fect vision proceeding on his course.” in the case at bar
The decedent was deceived light only by the dimness about the ele- stage manager the drama shaft, vator stage manager put in his death. The resulted which opened the rod with back decedent have believe the so door *14 was still posted there, no sign that he had illegally taken the elevator and was holding it on the fourth floor like a guillotine to fall on the veteran worker be- neath.
To deny the plaintiff in this case so the verdict intelligently arrived at jury and so emphatically approved trial on judge an abstract theory finds substantiation in the record is to make a sham- bles of the institution of trial by to freeze the law the fourth floor of dialectics instead of descend- the ground floor of facts. Boslover Ahavas Achim Belzer Association,
Appellant, Philadelphia Redevelopment v.
Authority. Mtjs- J., Before January C. Argued Bell, 1967. Roberts, O’Brien Eagen, Jones, Cohen, manno, JJ.