*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 vеredicto-, (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 tomаry 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 dоwn 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 appearanсe 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 thе 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 areа
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.
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. sufferеd 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 damаge 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 circumstancеs 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 mоnths 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 thе 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- distinguishаble. 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 аs 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
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, аnswer 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 reprеsented 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 оf 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 carеfully 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, Pа. 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 cоrrect? 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 aislewаy. (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.
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 wеre 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
gоt 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 supervisiоn 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: