*1 Appellant, Roebuck and v. Sears, Bizich,
Company. 1957. J., November Argued Before C. Jones, Jones and Bell, Chidsey, Musmanno, Arnold, Cohen, JJ. *2 Lyons,
A. G. with him D. John Jr. and Scales, appellants. & Scales for Shaw, B. Patrick him with Louis J. Costello, Coffman, Best and Smith, Horn, Schorr & Wolf, Block, appellee. Solis-Cohen, by Mr. Justice March 1958: 17, Opinion Chidsey, found for the defendant in these actions trespass arising wife-plaintiff
of out of a fall the flight Greensburg on a of stairs in the Store of Sears, Company. judgments Roebuck and From fol- entered lowing plain- refusal of their motions for new trial, appeal. Appellants complain tiffs of certain errors the admission of evidence and to the court. early
The fall occurred on March 1953 in the top evening stairway leading at the of main the from the first of floor the store to the basement floor. Wife- plaintiff, Kathryn accompanied Mrs. her Bizich, daughter shopping had been in defend- son-in-law, involved, ant’s and their store business there a visit to plant department in the basement. The stairs steps ap- the basement consisted of fourteen or treads 5y2 proximately asphalt feet covered wide, with tile one-quarter edging with a one and material inch metal along nosing edge step the forward or of each which was fastened down with metal screws. A wooden hand- railing along steps. ran each side of the
Plaintiffs’ son-in-law down the fol- first, went daughter, Mrs., by their and then Bizich. With lowed plaintiffs offered negligence, respect to defendant’s Wife-plaintiff testified following evidence: wearing shoes. flat-heeled she was the accident of time floor level stepped first from she stated that She right top foot and step her with from first her leg, heel stepped her left forward as she along extending strip caught metal shoe left edge forming front top floor the first right hand grasped in her step. the handrail She first tes- son-in-law Plaintiffs’ and she fell. loose but it was when Bizich fall, Mrs. not see he did tified that lying the third her saw around he he turned fur- top He step floor level. or first from fourth along extending strip the metal ther testified step edge forming first top front the floor *3 missing eighth up screw an with one inch, of stuck an daughter, Plaintiffs’ loose. the handrail was and that that she testified her mother fall, did not see who also eighth sticking up strip an about the metal observed following immediately This accident. the of an inch regard only testimony to the with introduced the liability defendant. of negli- plaintiffs’ way
By evidence of to of defense nosing, concerning gence handrail and the metal the its effect that evidence the introduced defendant steps inspection daily employes for de- made a morning including and that of the accident, the fects, regular program of maintenance and had a the store inspection. laid D. W. Hummell testified that he One steps asphalt nine months before the ac- tile on nosing time the was flush and at that with cident perfect in condition. He further stated in floor and experience opinion years as a contractor with in his laying nosing if one screw was removed from the floors, necessary pry great to use a metal it would be with . up nosing. leverage to raise thé Mr. assistant Gaumer, manager that he arrived testified defendant’s store, shortly after it occurred at the scene of the accident nosing personally ran over the and that he his hand up step not lifted first found that it was on the and personally way. any he examined He stated that also perfect Mr. found it in condition. the handrail and wife-plaintiff asked the accident occurred Gaumer how down stairs Mrs. stated that she walked and Bizich tripped, sideways, heel and her she must have questioned caught. also have Mr. Gaumer must they daughter had both and who stated that son-in-law nothing wrong there was examined employe Mary Myers, Miss an tes- defendant, them. steps shortly ac- at the after the that she looked tified Harry appeared right all her. Mr. cident employe McNerny, he stated that defendant, another shortly he arrived on the scene after accident, jerk any gave the handrail a and found it loose way nosing and that ran his he foot over top step perfect and it not raised at all but was in employe A. an condition. Mr. David Milne, also working approximately defendant who was fifteen feet shortly from the scene testified that accident, nosing by running fall examined after the edging top step hand over the and found no de- There fects. was also evidence considerable handrailing proper nosing were in order *4 that time of the trial and their condition has been not altered since the accident. days jury, case took
The trial of this three and the finding apparently accepted for in its defendant, nosing version that the metal and handrail in no were way defective at the time this accident There occurred. question finding amply supported by is no that this is appellants and do here evidence, contend that against weight the verdict was of the evidence. al- the court erred contend first that Appellants objec- plaintiffs’ defendant to over lowing introduce, pri- that tion, legal conclusions, the statements were daugh- plaintiffs’ or written inconsistent statements of making ter and denied son-in-law at the who, trial, after this acci- statements. minutes Twenty thirty dent occurred Gaumer manager questioned assistant wife-plaintiff and her two as to the circum- witnesses stances had their statements re- surrounding fall, duced signed to each of the writing respective concerned. persons These statements in general were that there were no defects all in at at steps time fall, were lighted well the accident was not the fault of Ap- defendant. contend pellants the court committed reversible error failing explain to the the difference between substantive impeaching testimony. respect
With prior inconsistent statement of the wife-plaintiff who was a to this party litigation, there is no doubt her prior state- contradictory ment was against admissible her both as substantive evidence and for purpose her impeaching credi- In bility. Commonwealth, Truscott al. et v. Binen- 358 Pa. stock, 57 A. 2d 644, 884, p. Court at said, 654: “. . ‘In. Kreiter v. 82 Pa. Bomberger, 59, p. Mr. Justice said: “It clear Sharswood though has been party examined in his own behalf aas his witness, admissions out of court, con- though tradicting evidence, are admissible without having first called his attention to as is them, necessary case other witnesses. Such admissions constitute independent evidence themselves, and are not admis- sible merely purpose of impeaching the credi- bility party witness, although incidentally ’ also have that may effect.” [Citing . . .” cases]
645
Company
Boulger
v. Arnoni,
Destructor
also Morse
See
he and
The
gestae.
of
res
that
this
not a
part
argues
not follow
does
be
but
it
proposition may
conceded,
Pre-
improper.
of
the admission
the evidence
denied that
own
son had
plaintiffs
viously,
case,
The
liquor.
he or his father had been using
either
admissible,
statement of the doctor was
there-
clearly
fore for the
it was
purposes
contradiction, although
to establish the
of the facts therein
incompetent
truth
Pa.
v.
stated: Scheer v.
279
Zavodnick
Melville,
401;
&
A. Rose
There was ample, competent independent evidence, prior statements of plaintiffs’ witnesses, handrail defendant’s store were in no way defective the time this accident occurred. Had the court been requested to point out the limited effect of the prior statements, have done undoubtedly so. Under repeated this rulings of Court, plaintiffs not now be heard may to complain. Furthermore, trial judge did not tell the jury that they were to consider prior statements of plaintiffs’ wit- nesses as substantive evidence but rather stated: “It is a question of really who is telling the truth in this
647 telling plaintiff . . for the case. Are the . witnesses telling manager truth; did the wit- truth or evening they signed when nesses tell the truth you or did have before will these statements Concededly, could have . instruction not? . .” request by in the absence of a been made clearer, point, plaintiffs charge on the we more elaborate for a reversible error. do it constitutes not believe appellants do not sustain The cases relied position. & In Atlantic Dincher v. Great their Pacific Company, A. one Pa. 2d wherein 710, Tea given for reversal was that of the several reasons *7 concerning jury been instructed the limit- should have purpose the certain was received, ed for which evidence specifically charge in its and more trial court itself opinion it were in fact its treated the evidence if Superior proof. In Pa. Herr v. affirmative Erb, testimony 62 A. 2d at- 430, 75, Ct. the witness’ tempted by prior to be discredited not inconsistent someone else statement of that what witness, held said the had said. The Court that such witness against testimony introducing offended the rule col- p. saying into 435: “. . . lateral matters at trial, may prior by showing be discredited while witness (Harrah v. Montour Railroad inconsistent statements 666), go 184 A. 321 Pa. the rule does 526, so Co., may say as to a witness be discredited far what had said the witness said.” someone else Appellants also contend that case was submitted argumentative jury charge deprived in an to the Appellants of a trial. have selected them fair certain charge they argue portions of the which was tanta- directing a for to verdict mount defendant. The printed twenty pages charge covers record, negli- that the issues of are convinced defendant’s wé contributory wife-plaintiff’s negligence gence and were fairly jury. In least different submitted to ten portions charge judge emphasized trial jury must decide the facts and whether wife- plaintiff telling and her witnesses were the truth or place charge the defendant’s witnesses. At no judge attempt usurp did the trial functions jury questions and decide the of fact before them. summing up charge, judge In his the trial “That’s said: say you. help you any I about all can can’t on depends the decision of the main because it all facts, credibility believability. on the of these their witnesses, they telling you telling you Are which one truth, the truth? You will have to determine . . .”
In Thomas v. 388 Pa. 130 A. 2d we Mills, 353, 489, pps. frequently said at 358: “. . . We have held judge express may opinion that a trial facts abundantly in a if case he makes it clear that it is the jury’s opinion govern and not his that must in the de- termination of the issues. At no fewer than a half separate places charge dozen the court below clearly emphasized negli- the conclusions as to gence were as to all of the defendants. . . . carefully reading
“In
as a
as it
whole,
must be read in order to determine its ultimate effect:
*8
McLeary,
Masinko et al. v.
337 Pa.
11 A. 2d
355,
648;
Cain v.
344 Pa.
22 A.
Kohlman,
2d
63,
667; Robinson
Philadelphia Transportation
et
Admrs.
al.,
v.
Co. et
347 Pa.
32
Bollinger,
al.,
A. 2d
288,
26;
Admrx. v.
Company,
West Penn Power
365 Pa.
76 A.
599,
2d 214;
perfectly
it is
clear that the
fully,
issues of fact were
fairly
presented
adequately
and
jury,
to the
and that
applicable principles
correctly
law were
ex-
plained
Keating
to it.” See also
v.
384
Belcher,
Pa.
Appellants also contend that the trial court erred
charge regarding
jury
in its
view of the scene of the
city
accident.
is located
one
Only
Defendant’s
store
block from the Westmoreland
House and
Court
County
on defendant’s
taken for a view
motion,
jury
of the locus in
Of
a view
quo.
course,
granting
is
sound
within the
discretion of the trial court,
discre
we will not reverse unless it is shown that
tion was
v.
exercised: Mintzer
improperly
Hogg,
401,
Pa.
43 A.
337 Pa.
465;
et ux. v.
Higgins
Jones,
Dissenting Opinion Mr. Justice Musmanno: A prospective employer to ascertain the desiring applicant of an antecedents employment,- telephoned *9 infor- asked for previous employer the applicant’s em- The previous character. the applicant’s mation on a if want but he’s all “Oh, right, replied: ployer The him.” hire ahead and go crook like that around, something in this case was trial judge charge find could they He told the jury that reply. like do so senseless if wished to but plaintiffs they for the responsi- it be their and idiotic a thing that, it. and he would have none of bility, Judge’s charge, the entire length Throughout trav- case ran 20 the defendant’s printed pages, which a small rode plaintiffs on a wheel big elled while on long legs, defendant’s case strode wheel. The The defend- on short legs. case stumbled plaintiffs’ plain- trumpeted case was bass horn, ant’s Trial piccolo. The squeaked through tiffs’ case partial, Judge’s unilateral, partisan, and unjust. warped, unequal, inequitable, This has said over and as indeed it does over, Court in this that a very case, Judge express opin- may ion of the facts he makes it provided “abundantly clear it is the of the facts that opinion gov- must jury’s in ern the determination of issues.” in this case reversed the procedure by for expressing possible return a verdict for the made it plaintiffs, abundantly in all justice clear that should return a verdict defendant. The facts in the case were simple. Katherine very Bizich was injured Roebuck Sears, store on March 1953. Greensburg She testified at trial that, downstairs in proceeding a metal store, on the first strip step caught the heel of her left shoe, felt herself she and she tripping seized a hand rail which was loosely fastened, and she fell. Her son-in- who was with also law, her, téstified to the loosé metal
651 that Her further railing. daughter explained and strip of an inch above strip one-eighth the metal rose step. surface of the that the called who testified
The defendant witnesses condition. During were in steps railing good and in and saw the trial visited the store jury for the defendant. a verdict question. returned They trial various plaintiffs allege The husband and wife Trial Judge’s charge the one that including errors, plaintiffs thus deprived and it argumentative I alone point a that of fair trial. am satisfied are Trial plaintiffs entitled to a new trial. by a mere form if jury degenerate meaningless can into persuade, trial are to be judges permitted coerce, in accordance with juries and induce to return verdicts will. Judge’s up made The which was jury here, ladies, graciousness, not but be persuaded by could venerable who Judge and the satire of the charm, name for justified in his justly enjoys community But in this and equanimity, impartiality. ability, to the winds and neutrality case he threw impartiality with partisanship to the hounds as he rode the steed of no and determination officer. At cavalry the vigor did exhibit equanimity temper, time of purpose fairness of that deliberation consideration, in Westmoreland and which he known County contact He was all have ever had with him. who to see a verdict for the defend- in this determined, case, him. could thwart reason nothing Facts, law, ant and hooves his thundering partisan under the disappeared inevitable became reality: what was charge —and desired thé Judge— in the verdict brought injustice the stairs of and fell down Mrs. Bizieh and She never a chance once Trial had unfairness. ; _ (cid:127) of his courser charge. mounted the Judge I Trial had have a for the high regard upon hoped Court, reading record, have ordered a new trial without saying summarily too much about it is so evident it because clearly 1956 was not of the learned Judge’s one January best days long distinguished career. But since this Court chose to rationalize Majority many Judge’s deficiencies has made an effort as support logic faulty that which characterized the it has be- charge itself, *11 my come duty, point out wherein Trial Judge the because failed, any have less for him regard —not than so my because bad a set of instruc- colleagues, tions as one cannot be allowed on the boohs as an undisputed fair example legal correctness treat- ment aof in Court. litigant plaintiffs pointed
The have out various excerpts from Trial the Judge’s charge which as error. they urge The of this Court Majority the must says charge be considered as a whole and not as an accumulation of parts. (Thos. v. Mills, 353.) 388 Pa. It precisely is doing that one very thing the gathers full import unfairness Judge’s his resolution not to have the plaintiffs prevail under circum- any stances. But while the aas whole un- is wholly it seaworthy, does lack for leaks in its several compartments. For the Trial instance, Judge said, anent jury’s visit stairs, locale of the “. . . All ladies accident, you walked down safely, there is ample testimony here that the condition is the same now, the were day there, it was at time of accident.”
If there was ample testimony the condition of stairs time the visit was the same as were at the they time of the accident,- there was also - testimony that- had they undergone alteration- and length. their Bizich tumbled down Mrs. since repair witnesses testified other and two plaintiff The loose was metal stripping mishap day items two insecure. If these railing and the hand visitation, the jury’s in on the day were order Fur- mutation. undergone to that had stairs, extent, the stairs down the fact that the walked jury thermore, of a unaware no criterion that one entirely safely fallen. innocently not have might defect staircase Pa. In Flower Baltimore R. Co., case of v. etc. prac- condemned the this Court emphatically 524, 528, In that case tice that now condones. apparently view we said: “It was never intended and that should be substituted the evidence, in make their from the view up should verdict thereof.” disregard
An from unpardonable Judge’s deviation utterly limitations occurred responsibilities authority provided when the said: hand “They rail, plaintiffs it was else loose; it was loose. say nobody says morning, he examined them manager says every You into good take that all shape. everything *12 and I consideration determine what the is; weight, would the the say weight of is that the de- testimony did use good fendant and the care, fact that Sears Roebuck Company required the examine to manager and and inspect the entire survey store every morning store opened before the for business indicates that due observing were care.” Who decides the weight the the testimony: the jury Judge? What was left to the determine when the Judge, sitting all the awesomeness judgment of his his robes, his and his years, knowledge, declared as a wisdom, fact that positive weight was testimony defendant used care? good If the defendant good care, used that was the end of the case and of apparently intended was what the course, plaintiffs’ his to claim. statement be—the burial giving overly After if extended fair, once not negligence in definition of what constitutes the case, Judge put proceeded, aside his robes and as if he attorney were the defendant’s show that himself, negligence. Argued Judge: there no “Now negligence? plaintiff says was there such herself you testimony, will recollect the well, she— the son-in-law went down first then wife and then Mrs. Bizieh last. followed came She grabbed said I Helen and Joe in front of were me, right leg the rail rail; was loose; as she first, stepped leg pull leg.” with the no can the left caught top strip, Her left one on the metal steps. says chipped. She her heel In connection with testimony, you she introduced this shoe that will you. you have out with It is Exhibit should carefully. I examine it As look at that heel on that testimony. shoe, it doesn’t substantiate their She going pull down the she said could stairs, she the left foot down. acting
And from now, defendant’s counsel, Judge assumed another role, that of He witness. said: sticking “If will notice there is a nail out from perhaps the heel of that eighth it sticks out shoe, an chip an inch. As see it there no knocked off the chip hanging is still heel, onto the heel; being sideways nail instead go bent as she going is bent if she down, forward; were down in ordinary fashion the nail would be bent back way; it is bent the toe of the shoe.” impartiality slight
On scales of cast token loyalty, namely, you ought “Í think to examine that *13 very carefully and determine what her caused to catch negligence her it heel; whéther was her Own or whether company, her negligence that caused it was the know her fall. don’t if that was the cause of to fall, you that.” determine wasn’t; it that it or that was, by swept quickly scales off the that bauble But he nobody strip long loose; this “How was utterance: plaintiff excepting nobody says says, it was loose daughter. Every other witness and her son-in-law top strip anything that on the said about who called, steps, same that it is in the said it loose, was day today, the other when same condition condition steps yourselves, as it at the went down the time the accident.” say plaintiff and her witnesses would
Who but the Certainly step to be it was not was loose? that testify expected would the defendant’s witnesses premises maintaining failed in safe store had customers? for the store’s neutrality
Every stirred, in a while an ember once Judge begin a statement which seemed would and the to the the constitutional that he was about leave determining hardly duty but could ever facts, neutrality. get For kindle a flame of absolute himself to is in this case, “In fact that’s about all there instance, being plaintiff strip of a if fell reason because being loose that caused the loose or a banister being bad in that in a condition condition, and it fall say day per- length time for a or would— haps might day be less than a for the number it even go up people and down that would there, length for such a of time as would to be have proprietor or with notice of the owner condition.” say here that the wished to noted will be
It step plaintiff fell reason of loose if the be entitled to recover but he never she would banister dangling “if” left It an the midair it. said *14 fog ambiguity obscurity, and in the never dense, so Judge could not see what the however, namely, wanted them to that their verdict was to see, be for the defendant. Judge
On another found himself in the occasion neighborhood impartiality but he him- would not let self enter the house of a fair deliberation of the case. you “If He said: determine that there was a defect stairway or the banister there, was or that loose, strip naturally . . .” loose, One would assume beginning Judge that after that kind of a would say “you will then return a verdict the defendant.” — Judge But not the learned Trial in this case. This quoted: he how followed utterance have “. . . no- body long here tells how it was loose; there is no evi- long dence whatever here that we can see as to how long standing manager existed; whether of that the should taken have notice of it.” sequitur:
He then followed with a non “Take that all signed into consideration and were these releases girls in blank or did these tell the truth here about preparation of those statements?” only Not did the minimize the evidence of plaintiffs, only magnify did the evidence of but he defendant, even went so far as to arouse prejudice jury against plain- minds prior tiffs. It seems that even to the accident Mrs. leg required Bizich had a disabled which her de- steps sideways. daughter scend Her and son-in-law preceded her down the of the Sears-Roebuck store day Judge gave on the impres- accident. The undoubtedly unintentionally, sion, there was something cowardly about the manner which the plaintiff’s daughter preceded and her son-in-law her steps. just He “I your down said: want to call testimony plaintiffs attention to the in this case. had fallen your mother care? If due observed Who go had leg lame, she was and broken you go of her sideways, ahead down downstairs going her down?” assist or would This case? to do with have did that What purpose only had one have could statement daughter against who a resentment to arouse *15 destroy her and thus mother in behalf of had testified lingered Judge this on credibility. even The her going ignoble in due care “Who observed theme: rather steps? first, The went down son-in-law those down Who came last. daughter mother next went observed due care?” It the accident? to do with did this have
What thought they daughter may son-in-law be that the going protect by but even Bizich first, Mrs. could better degree poltroonery on their worst if there were deprived aof part, been Bizich should not have Mrs. step railing and the if in fact the was broken verdict defective. cacophonic Judge touched chord
The then another prejudice. jury: is He “Who submitted to clerks, in of the case? Are these interested the outcome you get salary decide in favor who their whether telling company, they company against the are or the truth or are interested in the outcome of plaintiff, or for the are the witnesses who are case, asking your a interested the outcome verdict hand, gain In who or lose case? other words, your verdict.” According
What had that to do with the case? to reasoning plaintiff type a could never recover this gain by to a verdict in his It stands favor. when point necessary judge to out to not be should gain on be decided who stands to not to a verdict proves the evidence to be truth. on but what Judge getting away had a difficult time from this prejudice. deciding drumfire of He went “In on: sympathy. don’t decide it on Of case, course, we very sorry lady are all for this she is fell, hurt, negligent; whose fault who was it; who was careless; who didn’t observe due care and who stands gain by your lose the result verdict?” jury also
He added if should return plaintiff verdict for the she was not entitled “to be Judge made rich it.” Did the mean that the pass equal was to distribution of wealth in the land? regret
I Dissenting Opinion I that must write this high because hold the Trial esteem but we ideal, impartial will never achieve charges of fair, conspicuous if we particular allow so a failure as this go upon. unnoticed and uncommented I do not Majority believe that has done the Judge any by placing approval Trial service its on a *16 obviously partial, which one-sided and great I believe that a disservice has been done the plaintiff in this case. She never had her case submitted to the triers of the facts in accordance the rules elementary law rules of good fairness and sportsmanship.
I dissent. Dubrusky, Appellant.
Bovell v.