184 Pa. Super. 120 | Pa. Super. Ct. | 1957
Opinion by
Julius Beitch and his wife, Lena, filed a complaint in trespass against Hyman Mishkin to recover for personal injuries sustained when Lena fell on the steps of a stairway leading from the second to the first floor of defendant’s three-story apartment building. The jury rendered a verdict in favor of Lena but against Julius. Motions for new trial were filed by both plaintiffs and defendant. Plaintiffs’ motion was withdrawn. The rule granted upon defendant’s motion
The accident occurred on June 6, 1951, at 5:30 p.m. standard time. Appellees had occupied the third floor apartment for eight years prior thereto. Outside of their entrance door was a small landing, illuminated
In January 1951, the wife-appellee had undergone an operation on her left eye for the removal of a cataract. Following this operation, she spent several months in the home of a daughter. She had returned to her own apartment about ten days prior to the accident, and had used the stairs on only one occasion between the time of her return and the day of the accident, and then not alone. She testified that there was no defect prior to the time of her operation. On the day of the accident she left her apartment with the intention of visiting her daughter. She turned on the light at the third floor landing, and descended without difficulty to the second floor landing. There she turned off the third floor light, and endeavored to turn on the light which would have illuminated the stairs to the first floor. Because of the master control previously mentioned, the switch failed to operate. She nevertheless started to descend the stairs to the street level. At the fourth step her foot caught and her hand was pulled from the bannister. As a result she was thrown to her right and fell to the bottom of the steps.
Appellant’s principal contention in the court below was that the verdicts were inconsistent. Reliance was placed upon Elser v. Union Paving Co., 167 Pa. Superior Ct. 62, 71 A. 2d 529, wherein there was a verdict for the husband but against the wife. We held that those verdicts were inconsistent because the husband’s action “is derivative”. The case at bar presents the reverse situation, however, as appellant apparently now recognizes. On this appeal he contends only (1) that the finding of negligence on his part “was so clearly against the law and the weight of the evidence as to compel the granting of a new trial”; and (2) that the wife-plaintiff was guilty of contributory negligence as a matter of law or, in the alternative, that her contributory negligence was “so apparent as to . . . warrant the granting of a new trial”.
Since the stairway under consideration was used in common by the several tenants, the duty of keeping it in repair was imposed upon appellant as landlord:
Appellant’s second contention that the wife-appellee was guilty of contributory negligence is based upon cases
The granting of a new trial on the ground that the verdict is against the weight of the evidence is peculiarly for the court below, and the appellate court will not reverse unless there has been an abuse of discretion : Bell Telephone Co. of Pa. v. Cruice, 178 Pa. Superior Ct. 308, 116 A. 2d 355. See also Battistone v. Benedetti, 385 Pa. 163, 122 A. 2d 536. We perceive no abuse of discretion in the case at bar.
Judgment affirmed.
Tlie printed record contains plaintiffs’ motion instead of defendant’s motion. However, our examination of the original record discloses that the reasons assigned in the respective motions were identical, namely: “1. The verdicts were against the law. 2. The verdicts were against the evidence. 3. The verdicts were so defective and inconsistent that the Court cannot render judgment thereon”.
Chapman v. Clothier, 274 Pa. 394, 118 A. 356; Copelan v. Stanley Co., 142 Pa. Superior Ct. 603, 17 A. 2d 659; Brace v. Kirby. 43 Pa. Superior Ct. 389. Appellant also cites: Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8; Wright v. Pittsburgh Rys. Co., 320 Pa. 40, 181 A. 476; Costack v. Pa. R. R. Co., 376 Pa. 341, 102 A. 2d 127.
Cannon v. Blatt, 342 Pa. 308, 20 A. 2d 293; Ziegler v. Western Union Telegraph Co., 319 Pa. 274, 179 A. 45; Mammana v. Easton National Bank, 338 Pa. 225, 12 A. 2d 918; Ward v. Horn & Hardart Baking Co., 163 Pa. Superior Ct. 422, 62 A. 2d 97; Washburn v. Brunswick Hotel, 366 Pa. 463, 77 A. 2d 357; Miller v. Exeter Borough, 366 Pa. 336, 77 A. 2d 395.