*1 Appellant, et al. v. Rulon Johnson, C. Argued J., November 1949. Before Maxey, JJ. Jones, Steaene Deew, Linn, Steen, Pattebson, him Harold K. with & for Wood, Reilly Wood, appel- lant. him
Thomas G. with Theodore R. Gawthrop, Grif- Gawthrop Morris F. Moore <& for fifth, Gawthrop, appellees.
Opinion 1950: January Me. Jones, Justice to recover the defendant Rulon sued he fell through suffered when injuries damages in the floor of a restau- an *2 by opened hole left Rulon and the defendant. operated by rant owned as additional defendants, the brought upon record, business as doing alleged independent contractors, the had whose defendant employee, charged, partnership, and had failed to close negligently the opened the partners it or to the One of answered guard opening. had and that the been dissolved partnership averred he as an additional prior accident; impleaded, to he partner his former had who, averred, defendant, succeeded to the business and was the em- partnership workman. This ad- ployer allegedly negligent ditional defendant also answered and the case went to trial. At the close of the the learned plaintiff’s case, trial entered a nonsuit as to judge all de- compulsory fendants. The reason then assigned by court for its action was had plaintiff that been of con- as a matter of tributory negligence deny- law. Later, motion to remove nonsuit, court en banc confirmed the action of the trial on judge the same but added ground as a further supporting reason that plaintiff failed to prove the de- fendant negligent.
In passing upon lower court’s entry of the non- the facts only favorable suit, plaintiff and the inferences be deduced therefrom are to be considered unless, course, by his own plaintiff, unmistakable out himself of court. It put is in a clear testimony, only case, concerning whose facts the minds of reasonable honestly men cannot differ, that the entry of a com nonsuit is justified: ever see pulsory Gaines v. Philadel phia Transportation 613-614, there cases cited. On the fol basis, material lowing presently are facts. January plaintiff
About on walked noon 12,1948, place employment from West Penn- Chester, (less sylvania, to the defendant’s than a restaurant square away) get lunch as been his custom year. sixty-nine years for about a He old at the ivas employee neighboring time and an at a hotel where “cleaning sweeping.” worked “behind the desk” and The restaurant was at the corner of located northwest twenty-five Market and Walnut Streets and fronted feet along fifty on Market it extended back Street; feet crossing Walnut Street which north and runs south, right angles accordingly, Market at which, runs east and west. There was an entrance door into the restau- rant from each of the streets, toward the corner. The entered the Market Street door. On the right you side of the entered from room, Market parallel a lunch counter Street, stood with the Walnut *3 Street about wall, six or seven feet out from the wall; on the near and, side of the there were stools counter, patrons. Signs specifying for the use of the food for day, prices, hung with were on the wall back of the Along directly opposite west) (or counter. wall patrons were hang booths with hooks on which could their coats and hats. About three feet inside the Market slightly Street entrance and to the left there was a square music box three feet and five and one-half feet high; beyond and two feet the music there box, was a trap door in the floor which extended toward the rear trap eight restaurant. long The door was feet lay longitudinally and three feet wide and with the lunch counter and about Looking six feet out from it. directly to the rear of the restaurant from the Market edge trap Street entrance, on the lunch door, beyond counter side, extended out six inches the line trap hinged the music box. The long door was on its away dimension from the lunch counter when and, on the floor toward it back flat lay opened fully, booths. walked restaurant, entering
The plaintiff, upon and, box and the music back the lunch counter between the food to read up the music looked past box, when up left to go hang on wall. to his Turning signs he stepped hat on a hook at the booths, his coat and opened trap door, left floor, into the receiv- and was into the basement precipitated below, suit was The injuries brought. which this ing al- plaintiff trap open had never before seen the he had been an of the restau- though daily patron almost for a At the time here year. involved, rant door was and back flat on the open lying open- floor; barrier or unguarded without protecting did’not warning sign. any light showing see through hole in the floor before he into it. stepped Whether the defendant Rulon was neg ligence was matter for the to determine jury under the evidence in the . . case. He owed to the plaintiff the affirmative duty premises keeping reasonably safe for business such as visitors, and of plaintiff, giving failure to warning any maintain them in that con dition:” Kulka v. 314 Pa. Nemirovsky, A. 261; see cases there Vetter v. At cited; also, Great lantic & Tea 322 Pa. 449, 454, Pacific A. 613; Christman v. Segal, Ct. Superior A. 2d 676. “It is 89, 17 certainly as was true,” said Bloomer v. Snellenburg, 69 A. 25, 27, 1124, “that *4 where the owner or occupier of in premises, prosecu the tion of own purposes, invites another to come upon the with premises, cannot impunity the expose visitor to an unreasonable risk of any sort, as, example, open to an hole in a . . .” passageway (Emphasis sup A condition plied). of “so pronounced a character” is sufficient to carry a case to the jury on the question of or operator’s owner's negligence. know!-. the So as far the condition is owner edge dangerous important, of tlie in the existence present had such instance. The mere door in a floor intended to be trodden busi- of trap of the charge ness invitees sufficient owner was, itself, of of the potential the business with knowledge danger inherent an use in even occasional of the door trap business hours. at least during inferentially (and But, the is entitled the the defendant plaintiff inference), had actual condi- knowledge existing dangerous tion. Either he or an authorized was employee present in the restaurant the open while the was unguarded. restaurant’s being business was the plaintiff conducted usual; just been allowed to enter for a business and there was at least purpose; one other man at customer, the lunch counter —the whose greeting acknowledged. Thus, justify facts well the inference at the time in that, either or one question, defendant, representing him, of was in actual charge restaurant. The defendant under a was, therefore, legal duty to see that the open- floor was or that guarded other warning danger to visitors given lawfully upon the prem- ises. It cannot be as a matter said, law, defendant was not of a breach duty circumstances.
The case of McCreery v. Westmoreland Farm Bureau, 399, which the appellee is not cites, presently pertinent. There, dangerous at instrumentality, place its of installation, was an essential part owner’s grinding business; its mechanism had to be left open in order to receive the grain be its noise ground; gave warning operating mechanical parts; invitation to a business visitor did not include right to explore the hidden mech an anism; only imprudent meddler would do so blindly with his bare hand, below the floor under level, the mound of grain lying the hopper. Here,
590 to invited regularly restaurant were of the
patrons trap of floor the the where portion very walk over the in to the case show there is nothing and existed; door it was had to be maintained where that the to the operation it was essential that located; and unguarded to be left open or that it business; of Burckhalter v. The case time involved. at the here A. Pa. 16 2d Company, 716, 340 300, F. W. Woolworth in de- exculpation below the the court by also cited the similarly distinguished. be There, is to fendant, a con- instrumentality was, likewise, offending allegedly installation. business gruous exercised the de whether The question in the of him circumstances was care gree required rely He was entitled to on the for jury. likewise of his in the duty performance defendant’s affirmative Tea v. Atlantic & see Vetter premises: Great Pacific and cases there cited. p. And, at supra, failure to plaintiff’s anticipate negli by token, like defendant in such cannot regard on the gence part his claim for by damages be used indirection defeat a of such negligence. for sustained as result injuries v. A. See Adams Fields, present Nor do the facts, themselves, cases there cited. on of fault showing plaintiff’s such an unmistakable as a court a matter of part justify declaring, law, as safety. failed to use reasonable care his own while not entirely floor, hidden, obscured from the view largely music he walked back between the music box and box, counter. Situated as he then it lunch would not was, that he bestow require upon be reasonable to placing on moving feet forward the restaurant’s floor the concern as would be properly same degree required of him on sidewalk or v. public highway: Bloomer 27. p. at the food Snellenburg, Furthermore, supra, proprietor on wall back of signs placed by information of for tlie relevant timely lunch counter his attention. His glancing caught customers entering before them as he walked along counter, read up *6 been un arbitrarily cannot be said to have turning left, Bloomer v. cit. how Snellenburg, supra. If, warranted: at the rather than at the by looking up signs floor, ever, at the not the caution of a using expected he was, time, in such reasonably prudent person circumstances, of fact jury was one for the and not question presented for the Bloomer v. p. of law court: Snellenburg, supra, 28. The Great Atlantic & Compare, Subasky v. also, Tea 161 Pa. Ct. Superior 90, 93, Pacific where it on the of authority was 840, recognized, Bloomer v. that “In a department Snellenburg store, displayed attractively very purpose goods, one un excuse from an catching eye, may noting the floor of in obstruction on the aisle front of guarded him.” was not in the However, principle applied not because the Subasky case, allegedly distracting thing was not in a as the department seeks to store, appellee but because the distinguish reputed distraction case, “An consisted of no more ordinary display than oranges grapefruit a store . . . .” self-service The distinction intended in the case rests Subasky degree display’s eye-catching quality. Such being it could hardly be as a matter of that case, said, law, bill of fare for the emblazoned on wall of day a house is not a public eating sufficient attention-arrester to excuse an invitee for looked from having up where he was about to take his next step. stress appellee lays great on the fact that
plaintiff freely conceded had he looked that, toward the just before he turned left and stepped into it, he would have seen the dangerous condition and been able to avoid into the falling basement. While the plain- tiff’s frank admission attests his it does not veracity, serve to bar conclusively right recovery if, fact, not not blamable in the circumstances for having-
lie was v. are cases such as Bartek taken a further look. Nor 52 A. 2d v. Bailey 356 Pa. 522, Grossman, 20 A. Alexander 2d Realty Company, 362,, con was presently germane show In each of those cases one trusting tributorily negligent. own or to another’s rather than to his judgment, in the dark and fell to his forward eyesight, injury. went not a case of the been able having This is not he going to see where his not but, rather, having- him lay seen what before because of the diver temporary sion of his the owner of the sight business who, to, safe attendant right assume, provided condi tions. the cases that turn on the Likewise, obviousness or inattention” danger “thoughtless to surround v. Max ings Rogers Azen, (e.g., Inc., *7 Walker v. Broad and Walnut 529; Corporation, 320 Pa. A. or 504, 643; v. Western Ziegler 182 Union 319 Pa. Telegraph Company, 274, 45) 179 A. are not here The controlling. present material issue is whether the plaintiff’s failure to see the opening the floor time to avoid it falling through was excusable in the matter for a circumstances, jury to solve. —a The judgment is reversed with a procedendo. January Dissenting Opinion Mr. Drew, Justice 16, 1950:
I must dissent from the majority opinion because of
plaintiff’s
contributory
obvious
negligence. The majority
state that
need not
anticipate
defendant’s
That is true. But it
negligence.
is equally true “that a
person
not abandon the
may
duty of ordinary care for
his own
in the event of
safety, and,
seek
injury,
to charge
one whose
would
negligence
not
itself have been suffi-
cient
there
not been combined therewith the lack of
injured
due care on the
part
person.”: Walker v.
504,
al.,
B.
508,
W.
et
Corp.
593 have seen he could admitted Plaintiff instead not He chose walking. he Avas looked where he him failure rendered and that use his senses to Bartek of law: as a matter contributory negligence it any Nor is A. 2d 209. Pa. 52 v. 356 Grossman, the open concealed partially box excuse that the music Avould looked, had he it it approached since, as he stepped him he before liaAre visible completely been v. Co.) et ux. Woolworth it. See Burckhalter into A. 716. Pa. 2d plaintiff’s attempts justify majority opinion danger by stating that the menu
failure to observe “attention a sufficient on the wall the restaurant is negligence contributory arrester” to make question jury for the and cites Bloomer v. Snellenburg, authority. That case Avasso A. 1124 designed display decided because the counters were eye through people Avalking the aisles. attract placed Here the menu on the for the use Avas wall persons awaiting sitting at the or in the counter booths Ordinary person prudence service. dictates that a should going AAratchwhere he is and it is no excuse that he was looking signs ample at have had time which would to scan once he had taken a seat. The menus were not eye-catching justify so as to his failure to take normal precautions safety. I would, therefore, oavu judgment affirm of the court beloAV.
Dwyer, Appellant, v. Kellerman.