43 A.2d 393 | Pa. Super. Ct. | 1945
Argued April 24, 1945.
Appellants, husband and wife, brought trespass to recover damages for injuries resulting from a fall sustained by wife plaintiff upon a public stairway maintained by defendant. The verdicts were for plaintiffs, but the court below entered the judgments n.o.v., from which these appeals were taken, in the belief that the evidence demonstrated as a matter of law the contributory negligence of wife plaintiff, hereinafter called plaintiff. In view of the verdicts, the record must be considered in the light most favorable to appellants, and oral testimony adverse to the theory of liability will be rejected. McCann v.Philadelphia Fairfax Corp.,
At the place where the accident occurred, in the outskirts of the City of Pittsburgh, Bigelow Boulevard and Brereton Street run parallel to each other and are separated by an open, and rather steep, grassy slope upon which defendant maintained a set of wooden steps to provide pedestrians a means of access between Brereton Street and the Boulevard at the top of the hill. The lower end of the stairway was illuminated by a street light suspended twenty-two feet above the ground from a yard arm three and one-half to four feet long extending away from the stairs and mounted upon a pole set in the ground at a point even with, but six and one-half feet away from, the seventh step, on the right *349 side of one descending the stairway. The front half of the fourth step from the bottom had been completely missing for two months before the accident, and had been loose for two months before that, and although defendant's maintenance department had been advised of the condition on three occasions by a resident of the neighborhood, nothing was done to correct it.
At nine-thirty in the evening of September 2, 1942, when the weather was clear, but after dark, plaintiff, with her two-year old child in her left arm, was proceeding down the stairs on her way to her home on Brereton Street. Although she had lived in the vicinity for a number of years, plaintiff had had no occasion to use the flight of steps since the Spring of 1942 and she had no knowledge of the defective tread. As she passed the seventh step the rays of the street light came from behind her and the shadow of her body was cast before her down the remaining stairs. Plaintiff was looking where she was going, but because her shadow distorted her visual impressions she did not observe the broken tread, and she fell on the fourth step, although immediately before her fall she saw what she "thought was the step" and "it looked like a regular step." Plaintiff summarized the cause of her fall as follows: "Q. It wasn't because the steps were dark? A. No, because the shadow was dark the light cast on. Q. Is this a fair way to state it: That you couldn't see this missing tread not because the steps were dark but because your shadow obscured the missing step. Is that right? A. Yes. Q. Is that a fair way of saying it now? A. Yes."
Defendant does not take the position that it was without fault in permitting the step to fall into a state of disrepair so as to endanger the safety of those lawfully upon it. Since the stairway was maintained for the convenience of the public at large, defendant was obliged to keep it in a reasonably safe condition so that pedestrians in the exercise of care could use it without *350
peril. Zieg v. Pittsburgh,
While the cases relied upon by defendant make the question a difficult one, a careful examination of them will reveal that each is distinguishable on its facts and that none is controlling here. In Lewis v. Duquesne Inclined Plane Co.,
The plaintiff in Mammana v. Easton National Bank,
This Court in May v. Warner Brothers Theaters,
In our opinion this case is very similar factually to Ross v.Mayflower Drug Stores,
Defendant also moved for a new trial, which the *353
court below refused, apparently without consideration of its merits, because it had entered judgments n.o.v. for defendant. In these circumstances, when we reverse judgments so entered, it is the practice to reinstate the rule for a new trial and permit the court below to pass upon its merits. Poch v. Equitable LifeAssurance Soc.,
The judgments are reversed and the rule for a new trial reinstated.