384 Pa. 338 | Pa. | 1956
Lead Opinion
Opinion bt
On Saturday afternoon, May 6, 1950, Mrs. Helen Seng entered the Acme Markets of the defendant American Stores Co., in Allentown, for the purpose of doing her week-end purchasing of groceries. She accomplished her objective and emerged from the store carrying in her arms two bags of such size and content that they reached to her chin. She turned to the left on Hanover Street, the thoroughfare on which the store fronted, and then, arriving at the corner of the building, made another left turn to follow the footpath which skirted the structure on its east side, leading to the plan of lots where she resided. Only 6 to 8 inches from the corner there lay on the footpath a disconnected rain spout guard (a tin device looking something like a stove pipe), not visible to Mrs. Seng because of the bundles in her arms. On her first step around the corner, she tripped over the abandoned tin cylinder and fell, sustaining serious injuries not necessary to discuss here. In the ensuing lawsuit which she brought against American Stores, the Court below entered a compulsory nonsuit on the basis that the plaintiff was guilty of contributory negligence as a matter of law. This appeal followed..
It is unnecessary to dwell on the fact that getting groceries out of a store is just as important a part of the shopping operation as paying for them, and that a duty devolves upon the store owner to keep his building approaches as safe as the interior of his establishment. Nothing can be more common to the eye than customers leaving a grocery store laden with packages. It could even be said that it would be more unusual
Although it could not be denied that the plaintiff had the right to get her groceries home, the lower Court, in nonsuiting her claim, did not indicate what course was open to her to get this mission accomplished. Since she was alone, the only alternative which was left her was to make two trips, but there is no standard of conduct which required her to undergo the effort and toil of two journeys when, with a clear sidewalk beneath her, one would have been sufficient.
At any rate, if she used bad judgment in making a single trip instead of two, her action was not so radical a departure from what would be expected of a reasonably prudent buyer of groceries that the law should say that it constituted contributory negligence per se. As Mrs. Seng came out of the store, a clerk of the defendant company preceded her and turned the corner before her. It would not be unnatural for her to assume that if danger lay in her path this agent of the defendant would warn her of it. He was, however, si-, lent.
The law has not catalogued every conceivable situation in accidents of this kind and labelled the ones which spell out contributory negligence per se and
In Duvall v. City of New Castle, 74 Pa. Superior Ct. 573, the woman plaintiff sustained injuries when
In Rementer v. Phila., 41 Pa. Superior Ct. 354, the Superior Court also decided that it was a question for the jury whether a woman plaintiff was contributorily negligent when, pushing her own baby carriage, she fell into a sewer inlet screened from view by the carriage. In Strader v. Monroe, 202 Pa. 626, we held that it was for the jury to determine whether the plaintiff was oblivious to her own safety when she cycled so close behind her son that she was unable to see a loose plank on a bridge which caused her to fall.
In Nicholson v. Philadelphia, 194 Pa. 460, this Court affirmed a verdict where the plaintiff’s view of a defective sidewalk was obscured because of packages she carried: “It was also in evidence that the plaintiff was incumbered with various articles in her hands and arms at the moment of the accident, being engaged in moving from her former residence to another. In these circumstances she could scarcely be expected to keep up so careful a lookout for defects in the pavement as an ordinary foot passenger entirely unimcumbered. In view of these special facts in the situation it was the duty of the court to leave the questión of contributory, negligence to the jury.”
The average person going about his affairs with reasonable care is not required by the law to approach every phase of his daily routine with suspicion and dis
Mrs. Seng could well assume that many customers would come out of the store encumbered with packages as she was encumbered, and that reasonable care would be exercised by those whose business visitor she was to keep the exit path clear of stumbling obstruction. In the case of Mullin v. Welsbach St. Lighting Co., 318 Pa. 552, 555, we said: “In determining whether or not a pedestrian has exercised sufficient care, the fact that his arms are encumbered by packages, which to a degree prevents him from seeing what is on the pavement, is one of the attending circumstances which must be taken into account.”
It is to be noted in the case at hand that the accident to Mrs. Seng happened so quickly after she turned the corner that it would have been a question for the jury whether she was at fault, aside from the fact that she was carrying packages. She fell at - the very first step after leaving the front of the market. In Cox v. Scarazzo, 353 Pa. 15, the plaintiff fell into a delivery well after taking one step from a restaurant he had visited. This Court held that whether the plaintiff was guilty of contributory negligence was a matter for
This Court has said on numerous occasions that: “Contributory negligence will be declared as a matter of law only where it is so clear that there is no room for fair and reasonable disagreement as to its existence. If reasonable doubt exists as to the inferences that may be drawn from the oral evidence, then it must be submitted to a jury. In passing on a motion to remove a compulsory nonsuit and in reviewing a denial of such motion, the evidence must be considered in light most favorable to plaintiff, and he must be given the benefit of every inference and deduction reasonably to be made therefrom.”
Judgment reversed, and case remanded with a v.f.d.n.
Szukics v. Ruch, 367 Pa. 646, 649.
Dissenting Opinion
This Court has said countless times that a person is guilty of contributory negligence as a matter of law if he fails to see what could and should have been seen if he had looked. Expressed in other words, a person cannot walk or drive blindly — if he does and is injured, he is guilty of contributory negligence as a matter of law.
Plaintiff was walking along a sidewalk; she was carrying bags or bundles in her arms in such a fashion that she could not see anything on the pavement in front of her “for about ten feet”. She did not stop to look if the sidewalk was clear, or move the bundles so that she could see what was in her path, or turn sideways in order to see if there was anything on the sidewalk. In broad daylight she rounded the corner of a store, took one step and then fell over a metal rain-spout guard which had broken and fallen on to the sidewalk. It was one and a half feet long, one foot high and one foot wide. As this Court said in Bilger v. Great Atlantic & Pacific Tea Company, 316 Pa. 540, 543, 175 A. 496; “It is well settled that one who fails to notice an obviously dangerous condition on a sidewalk and is injured thereby is contributorily negligent as a matter of law.” It is difficult, if not impossible, to imagine a clearer, stronger case of contributory negligence !
In Druding v. Philadelphia, 374 Pa. 202, 204, 97 A. 2d 365, the Court said: “ ‘What this court stated in Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A. 2d 754, applies to the instant case: “. . . When an individual can assure his own safety by the use of his senses, he must do so or abide the consequences of his carelessness. . . . The duty of availing oneself of one’s senses, for self-protection can seldom be breached with physical impunity and never with legal sanction. . . .
“ ‘A person may not recover for injuries which are received as a result of a failure on his part to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed’: Boock v. Acme Markets, Inc., 347 Pa. 501, 503, 32 A. 2d 759; Rogers v. Max Azen, Inc., 340 Pa. 328, 16 A. 2d 529.”
Plaintiff contends that she should be held to a lesser degree of care because she blindly turned the corner, than if she had been walking straight along the sidewalk without being able to see any hole or obstacle within ten feet of her. If anything, the degree of care in rounding a corner is higher than in walking straight along a sidewalk. This plaintiff admitted that she walked around the comer without looking and without being able to see a very large object 12 inches high and 18 inches long. She claims she can voluntarily and intentionally put on “10 foot blinders”; and if she turns a 90° angled building corner, encumbered to such an extent that it is impossible for her to see within 10 feet of the corner and she falls within that space, it is not her fault. Such a contention seems to me to be so legally indefensible as to be ridiculous! It would, in my judgment, be franker and wiser to abolish the doctrine of contributory negligence, than to make a mockery of the law by allowing this plaintiff’s case to go to a jury.
For these reasons I vigorously dissent.