*1 we deem further discussion however considered; been unnecessary. for the defend- and here entered reversed

Judgment ants. Sports Pennsylvania and Enter- v.

Stevenson Appellant. prises, Inc., *2 October Argued Before C. 7,1952. Drew, J., Stern, Chidsey and Jones, Stearns, Bell, JJ. Musmanno, appellant. J. for Jr., James Burns, & E. him John with Evans, Ivory Evans, Jr., Evans, for appellee.

Opinion by Me. November Chidsey, Justice 1952:

Plaintiff obtained a for injuries verdict $12,000 sustained fell when he down a of four lo- flight steps cated balcony sports amphithea- defendant’s called The located at Fifth ter, Gardens, Avenue Defendant filed motions for Craig Street, Pittsburgh. trial new non obstante judgment veredicto. The lower court denied the motion for non ob- judgment stante veredicto and refused the motion for a trial new provided the plaintiff filed a remittitur of all of the verdict excess of which was done. Defend- $9,000, ant now non obstante appeals, asking judgment (a) a further veredicto-, (b) reduction the verdict; (c) a new trial.

On January 27, 1949, manager for a plaintiff, chair rental concern, together with two drove assistants, to defendant’s amphitheater to pick up some chairs owned by the concern which had been rented to the de- fendant for use the The preceding west end evening. of the amphitheater faces Street while the south Craig end runs Fifth along Avenue. After their parking truck on Fifth the three men Avenue, proceeded to load the chairs. Upon investigation plaintiff found that seven or eight of the chairs were There- missing. upon he went to the office of the manager of the amphi- theater and was told him to look by around for the chairs. (It is not disputed here that the plaintiff was a business The invitee.) amphitheater had the cus- an, tiers of tomary seats with a balcony, surrounding A arena. search of the lower levels did not reveal the missing plaintiff so went to chairs, balcony effort to find them. To the rear of the last seats balcony was a walkway or aisle about three feet wide. Plaintiff was on the north side of the build- ing walking east west. Consequently on his right was the wall of the building and on his balcony along walking

left boxes. As he was looking flight steps. for his he fell down a chairs, developed flight steps,

It that this about 40 inches height, platform led down to a ran for a dis- approximately along tance of 16 feet and behind the press steps bring flight box and then another person walking in the direction that up going, to the same before. A level as bannister railing along ran the left side of the aisle behind the press high The boxes. back of the box was six feet (measured platform floor), from the ofwas solid platform The wood. floor of the was concrete and was painted dark red. lighting-in

The the área became the crucial issue in variously the case. It was described the witnesses agreed only lights but all that the which were on were lights building over center of the where a hockey practicing team was in the arena. Plaintiff general appearance testified that “The aisleway straight through.” continued on and “The areaway press due box interference cre- there, particular ated a shadow that section.”. He also “Q. going testified: As walked towards that area Craig general in the direction of what was the Street, appearance place? of the aisle as reached that general appearance The was a continuation of the aisle Any through. as I walked . . . shadoAvor dark- *4 along that there ness was as walked was not no- by you ticed until after isn’t that correct? fell; only „A. I can that as I answer to me it led before, up straight areaAvay, as a in the same as that which I walking. been . . . Will that? And had answer any explanation you then can make A. I want. Avill as I have answer that the same have answered the last that it all looked like a tAvo continuation three, of that floor.” He said there natural in- was no showing side the arena. Exhibits various vieAvsof the

161 by counsel botli into evidence introduced area were parties. the the counsel for now turn to contentions of

We argues support appellant. motion in of his He judgment no veredicto that non obstante guilty showing plaintiff negligence the of and that contributory negligence as a matter of law. of any negligence,

In order the defendant of to relieve plaintiff points press that the box which counsel out cast the area fell was claims a shadow over where steps end in front the that led down east not of may press this the lower be, level. However could well so to this area box was close made the area found that it cast shadow and though on level. The testi- look continued replete inadequate lighting mony is with evidence man The in the area. The maintenance at Gardens, lights Mr. that none of the available Mark, testified plaintiff in area The turned on. testified were immediately lights in that there were the area and they gave turned suffi- after accident on floor While in levels cient illumination. difference negligence (Strawhacker consist of does itself Stephen Superior F. & 147 Pa. Ct. v. Whitman Son, provide 349), negligence 2d it is fail an great there is a difference with area where levels adequate light person properly that a who so and, v. Roebuck area is warned: Cathcart Com Sears, Superior pany, Kmiotek 113; Pa. Ct. v. 39 A. 2d 923. Anast, testimony plaintiff quoted

The state- ment of it clear that the facts makes of con- tributory jury. negligence Counsel for the plaintiff upon defendant of the other relies he contends indicates that the area was so dark plaintiff proceeded or that should not have going. looking was not where he was As- *5 162

suming this testimony does these conten- support other tions, of the testimony plaintiff supports op- posite conclusion. in Where one of a part plaintiff’s testimony he is entitled his case submitted to jury, and another he it is for the not, to reconcile the conflicting statements: v. Phil Greene 279 Pa. adelphia, Bisaillon v. 134; Phila delphia Rapid Transit Ct. Company, Superior 156. We therefore are of the opinion that con tributory negligence on the part of the plaintiff was for the jury.

The next contention of en- appellant is that titled to a further reduction Plaintiff verdict. suffered a comminuted fracture calcis of the os right or heel bone. He ten remained about hospital days during extending which time a cast put on, was above knee. his This cast remained on for about two and a half months. Plaintiff not return to work until July 1949. At time he still had difficulty with foot and had to that time previous given been Dr. Faix physiotherapy treatments. stated that was considerable to the soft tissue and that damage after the cast had plaintiff was removed severe swell- ing several months. Dr. examined the Epstein plaintiff two months before trial trial Feb- (the 1952) and that at time ruary, testified had “. . estimated at 20 partial disability per . cent, he at time type of work which doing hurt.”. He further said that the condition was had “Possibly permanent.”.1 Plaintiff lost wages and had medical and hos- about amounting $1,5002 pital Under such circumstances expenses $665.50. the trial judge thought $9,000 was excessive, and we agree. 1 A discussion of this follows. more extensive

2 Also see infra for a more extensive discussion. *6 other he con Appellant points lias raised which tends entitle him to a trial. contends new First, that did not evidence of loss of appellee produce any jury therefore it error to the wages was allow so find. The this connection was the the salary received same five during months he was disabled the accident. as he did before He contended, this was the nature however, of a In gift and not for services rendered. Schwoerer v. 167 Pa. Ct. Philadelphia, Superior 356, 74 A. 2d Court plain said: “Whether a tiff may recover loss of wages a tortfeasor where injured has been party paid his em wages by ployer to be determined the evidence. The rule of law is clear: if the payments by the employer a gratuity or claimant recover gift, may loss of wages against a third tortfeasor. party The generosity of the employer does not redound to the benefit of the wrongdoer.”. There is no doubt in the instant case there was sufficient evidence that plaintiff did not in any manner perform duties after the acci dent to the same extent as he did before. Plaintiff’s wife variously testified that he only ‘phone answered calls when they were to him referred from the shop and that he went out several times when it was nec- essary solicit orders. The court permitted below jury find whether the money paid to him awas gift or wages. Although the plaintiff’s testimony that the money him paid to was a gift not it make so, (Pensak v. Peerless Oil Company, there was 792), ample evidence here from which the jury could have concluded that plaintiff did not per- form sufficient services to make the payments wages. He was obviously so disabled that he could not do the physical work of loading chairs which he did before the accident and the testimony as to his managerial activities after the accident could well have been found merely Com- v. Peerless Oil Pensak

to be incidental. plain- distinguishable. pany, supra, In that case the Court of the business tiff one of owners money testimony characterizing as a that his held gift did not make so. error for contention is that it was

The second plain- permit to include its verdict court to disability. exception was for future No tiffs claim charge fol- on this taken to the testify this Dr. Faix did .. Now, lows: up present he didn’t thing time but at the is all cleared injury. permanent give As us idea that this was *7 testimony, that he believes I he said recollect his according you improve. gradually have it, So foot will testimony, that there is inconvenience Dr. to Faix’s difficulty it continue and will in that foot now and give us an idea of Dr. Faix did but inasmuch as that as a any cannot consider in the future, time injury as exist- permanent it cannot consider and' day any great length of this ing time after of trial.”. Epstein’s Dr. testi- judge’s of discussion

The trial question of the mony asked Then he was “. . . was: ‘Possibly Epstein, I recall, said, Dr. future and get a possibly better within permanent he will is opinion.’ if he year. Well, a definite I don’t have opinion then as a doctor, definite have a doesn’t per- has a that he of fact aas cannot decide express Epstein it as injury. wouldn’t Dr. manent ‘possibly’. He opinion the word he used a definite year.’ Then ‘Possibly get a better within he will said, per dis- cent this 20 meant he asked what he was inability do ‘That’s ability recall, Ias and he said, say that pain.’ he didn’t Now, of because his work ef- that his words, in other the work, not do he could as I recol- he per said, but reduced, cent are 20 forts inability because of this lect, point pain doing Defendant Ms work.”. submitted plaintiff’s charge medi- Because the which read: “6. given by disability, as future as to his cal evidence, expert cannot conflict, medical his witnesses disability plaintiff in the make award future.”. Rapid Transit Mudano v. Phila. Co.,

The case of appellant, upon by the relied 137 A. 101, problem completely inapposite. In case injury came was one of whether causation, i.e., cause. result of another or was the accident unanimity required of in that case the Court Thus experts injury by plaintiff’s opinion that the medical problem here involved from the accident. The resulted prognosis cannot be re a doctor is one of on which express opinion quired the definiteness re with many per question. quired In cases in a causation may injury opinion of doctor well the honest sonal improve” “gradually or that be that a will may permanent pos injury may “possibly be uncertainty year.”. sibly get This better within a opinion the basis for should not be honest medical permanent injury any finding by suf but is jury find some on the other ficient, hand, *8 disability. judge made clear This the trial future complete charge satis if he did not do so to exception should an counsel, faction of the defendant’s been taken. have ap- contention of for the

There remains the counsel appellee pellant made an unfair counsel jury. speech argument closing After in his following jury, arguments col- of counsel to loquy . . . And as to Exhibit 11, “Mr. Burns: ensued: argued that there wasn’t the counsel shows yesterday Friday morn- claim was that we last purpose showing only ing, offered for the that was point changes and was made at never that were offered showing illumination as it existed at time of the accident. Mr. Evans: it Certainly is. We called Mr. our last Adamson, rebuttal witness, answer to illumination pictures taken Tuesday to show that he took his on in the photograph Friday presence of both counsel and if he was asked that rep- resents the illumination. Mr. Burns: On Friday when he was no there; evidence the conditions were the same. Mr. The Evans: were on lights over ice. Mr. Burns: That doesn’t mean the same amount of The light. Court: He said he took a picture. flash Mr. Evans: And that that represented the illumination. I be will glad have the record if your checked Honor is in doubt about it. The Court: It is for the a matter jury; for their recollection. Mr. it Burns: To me is such an improper argument that I think it don’t should be left just the air. It seems to if your Honor me, doesn’t correct I should an objection on the it, record. The Court: We objection. will note Mr. your Burns: As a matter of it seems to me I should fact, ask for the withdrawal of a not a proper juror, in that argument regard. The Court: Do you want to do that? Mr. Burns: Yes. The Court: That mo- tion is refused. Exception.”. Nowhere in the record does appear what counsel for the said appellee the jury. Counsel for the understands appellant argument was directed to the fact the condi- tion illumination in of the Exhibit was the same as that at the time of the accident. Counsel for the appellee contends that his went to at- argument only taken tacking pictures appellant during trial. A motion for a new trial miscon- alleged duct or is directed improper largely remarks of counsel Donahue v. Punxsu- the discretion of the trial judge: 41. Where the tawney Borough, remark it is an abuse of dis- obviously prejudicial,' *9 cretion for the court below to refuse a trial: Nar- new

167 A. 2d. 87 Pa. Township, Mauoh Chunk ciso v. the and testimony reviewing carefully 233. After trial judge that the opinion we are of objection, his discretion. did not abuse affirmed.

Judgment Mb. Justice Dissenting Opinion Bell: that is pleaded negligence The only pertinent sufficient adequate to furnish defendant “failed walking Plaintiff was plaintiff”. for the use of light rail on his and a boxes open an along aisleway with for him light “ample” left he testified admitted which from arises in this case Most the confusion see. the bottom at areaway that in the this wall wall press there was a solid steps This areaway. in this darkened or shut out the to prove failed is irrelevant since plaintiff aisleway. in the the light caused his fall or affected at a floor have one It not se to negligence per leading have steps floor or to lower level than another Snellenburg, v. Haddon one floor to another: v. Whitman, Pa. Strawhacker 8; 349. The crucial Ct. 23 A. 2d Superior on aisleway is: Did plaintiff prove enable sufficiently lighted walking was down which steps him see the commencement of he fell? “Q. really So were

Plaintiff follows: testified as something hap- until on for chairs going down looking possibly A. that’s Well, is that correct? happened; Q. mainly directed, correct. . . . And attention was your way boxes in to what be then, might as you And isn’t that correct? sir. chairs; Yes, as I as- were walking along and, doing boxes; head turned your had sume, probably be permanently. correct? A. That wouldn’t Q, down walked but I mean generally No, *10 you railing along

there. A. as would walk the Well, looking your you try and watch would chairs, subconsciously you going the same where were at looking you going Q. time be in the boxes. As were looking your subconsciously, chairs and as down you you you trying going, say, to look as-to where were ample you tell illumination on the aisle- us that hád way Q. the aisie A. Yes.* You see to see could itself? you or not the floor of the aisle and could see whether your might any out there chairs have been stacked there. or A. There were no out out there? were .chairs you plenty you Q. had know because Well, you? see there to didn’t A. We could see it, you aisleway. (67a). Q. . . . other words, But, you up you floor front of as walked could see the you point I correct? am is that fell; where aisleway you steps; talking walk were about looking- walking along ing there I A. If were on. naturally straight I see would floor, at down walking along I like con as was looked but floor, you any right. In from where Q. event, All tinuation. point up where got to the end, Street at the Neville on, ample you you apparently illumination see had fell, along? you I didn’t see aisleway walked walking. Q. just In continued any I at all. hole spot you or a dark shadow see a didn’t other words, any time be it at the rest of different that was you? all looked A. The floor you fell, fore right looking you down where been had Now, same. you just your before putting fell, feet you aisleway;' A. I that correct? have seen could there toas have seen would Q. And have. should if you'say} too aisleway as dark, that was part in the observed also anything; would to see dark * Italics ours. I see not? A. should it.”**

that, Again, (p. . 87a-88a) . .

Where it is ordinarily conflicts exist, to reconcile but the law is such conflicts, equally well settled that where the burden of proof upon to establish or negligence other facts before a can be and his tes recovery had, on the timony is so uncertain or inadequate or contradictory ambiguous present *11 no basis jury for a finding except a mere conjecture, he cannot recover: Musleva v. M. Patton Clay Co., Pa. 12 A. 2d 249, v. P. R. T. 554; Natvig 293 Pa. Co., 143 A. v. 18; Lithgow 334 Pa. Lithgow, 2d 573; Goater v. 124 A. 83. Klotz,

I would non grant judgment obstante be- veredicto cause plaintiff’s testimony was and insuf- inadequate ficient to prove and his admissions con- negligence, victed him of contributory negligence.

If judgment n.o.v. is not I would granted, grant a new trial reason. Plaintiff’s em- following ployer him paid his regular salary his throughout five months’ which time convalescence, during plaintiff per- formed substantial services for his employer. Plain- tiff considered these payments were a and the gift permitted to so find. The on this point Q. follows: “Mr. Evans: As I understand, then, Mr. Stevenson, you did no work for profit wages from the time you were hurt until you went back July of 1949? A. Q. That’s correct. The Court: Is that your that weren’t answer, you paid for this period of time that were off? Mr. you Burns: He didn’t say that. The Court: That’s I what wanted to find out. If he ** necessary, pic- While no additional evidence is defendant’s (Exhibit B), deny ture which the did not was a true representation of the fell, clearly at the scene at the time he ample light. shows then period there is no that

got paid damage If then is no time. a got month, $300 Q. Mr. He that . . Be- loss. Burns: didn’t ask him . gift tween those did receive benefit or you dates your from Holman? A. Mrs. Hol- Mrs. sister-in-law, out of perhaps because she was man, my sister-in-law, of her me the goodness give equivalent did heart, Mr. I had I been working. what have earned Q. I . Mr. Burns: You Evans: Cross examine. . . see. mean,, by Holman, that that received Mrs. you that you business were work- is, owner you is that what mean? ing for, month; Yes, $300 Q. say consider because gift sir. And it? A. I to earn is that nothing it; certainly, to it. standards of entitled working, time? Did you during solicit business, however, I A. There had Mr. Cochran a few occasions when me out. Those were drive call for me and take me, the tele- Q. Did business on few occasions. solicit anything time? A. I took care of phone during home was referred to me that came into or which my *12 supervision Did look after phone. if time? A. way during Well, the work in any which came problems up, there were any questions problems to me with such Heron come Mr. about them.” (175a- what to do my judgment ask 177a). Co., v. Peerless Oil said Pensak

As this Court as a gift “Characterizing 792: 311 Pa. 207, 210, it so. permit not make To him does money paid wages lost would, under the guise recovery of money door misrepresenta open wide facts], these [under of cases.” in this class and fraud tion