Berrien v. Philadelphia Rapid Transit Co.

3 A.2d 18, 133 Pa. Super. 481, 1938 Pa. Super. LEXIS 344

• Court: Superior Court of Pennsylvania
• Decided: October 5, 1938
• Docket: Appeal, 129
• Status: Published

Opinions

Opinion by

Baldrige, J.,

Agnes H. Berrien, a married woman, 54 years of age, alighted from an elevated train of the defendant at Dauphin Street, Philadelphia, a few minutes after 6:00 o’clock on the evening of March 30, 1936. She started down the right side of a stairway, 4 feet wide, under lighting conditions which she described as “dusky — it was twilight,” “shadowy.” Light was coming through the windows on the side of the stairway and through openings in the risers of the steps. When she had descended 12 steps she overtook an elderly lady slowly walking ahead of her, using the right side handrail. Mrs. Berrien turned to the left to pass this lady, looked down, and thought she saw a platform the next step below ber. Evidently there was enough light to cast shadows as Mrs. Berrien testified that she was deceived by a shadow falling across the step and instead of a platform it was an intervening step. Not anticipating it would be necessary for her to step down to reach the platform, she fell and sustained injuries.

The court below submitted the questions of the defendant’s negligence and the wife-plaintiff’s contributory negligence to the jury and verdicts were rendered in favor of the wife in the sum of $500 and for the husband in the sum of $300, which, by stipulation of the parties, were moulded into one for $800 for the wife.

The defendant does not question the sufficiency of the proof to establish its negligence in failing to have adequate lighting facilities at the time of the accident, but asserts that the wife-plaintiff was guilty of contributory negligence as a matter of law.

It is a well-recognized rule that if there is credible evidence from which a reasonable conclusion can be drawn to support the claim of the plaintiff in a negligence case, the question of the plaintiff’s contributory negligence is ordinarily for the jury. A court is not warranted in declaring a person guilty of contributory negligence unless the evidence of his want of care is clear and unmistakable: McCracken v. Curwensville Boro., 309 Pa. 98, 114, 163 A. 217; Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 287, 194 A. 194.

Walking down a stairway, partially lighted, does not necessarily constitute contributory negligence. It can be fairly assumed that there appeared to be a sufficient amount of light for Mrs. Berrien to reach the street by using the facilities furnished by the defendant, especially when many other patrons of the defendant were using these steps. There was no. apparent reason for her to be apprehensive that she was encountering a danger. Of course, she was required to use reasonable care under the circumstances as they existed. She was entitled to conclude that defendant had performed its legal duty to maintain conditions so that those invited to use the stairway in departing from its cars could do so safely: Cathcarb v. Sears, Roebuck & Co., 120 Pa. Superior Ct. 531, 183 A. 113.

In Murphy v. Bernheim & Sons, Inc., supra, the plaintiff, an elevator repairman, walked towards an elevator shaft on defendant’s premises through dim light which made it appear that the elevator was standing flush with the floor, and he fell into the shaft. It was held that the question of plaintiff’s contributory negligence was for the jury. There, as here, the plaintiff was confused by shadows which interfered with his seeing where he was walking. Mr. Justice Maxey, in delivering the opinion of the court, said (p. 288) : “When one walks in dim light where he has no reason to apprehend danger and uses his best judgment as he proceeds, and then meets with an accident, the question whether or not he is guilty of contributory negligence is usually for the jury.”

We held in Coxey v. Guala et al., 112 Pa. Superior Ct. 460, 171 A. 484, where the plaintiff walked down restaurant steps in a dim light, that his contributory negligence was a question of fact for the jury. Of course, if one is proceeding in total darkness, as in Conboy v. Osage Tribe No. 113, 288 Pa. 193, 135 A. 729, and Smalley v. First National Bank, 86 Pa. Superior Ct. 280, where the plaintiff in each case started down a completely dark stairway and fell; or where one walks through a totally dark room, as in McVeagh et al. v. Bass, 110 Pa. Superior Ct. 379, 168 A. 777; or is blinded while stepping from a bright light into darkness, as in Fordyce et ux. v. White Star Bus Lines, 304 Pa. 106, 155 A. 98, he is guilty of contributory negligence. Those cases are not applicable with their different factual situations from those presented in the case in hand.

The appellant further contends that the wife-plaintiff failed to use due care in not taking the handrail and in attempting to pass the elderly lady who was slowly proceeding ahead of her. The handrail was not essential to Mrs. Berrien’s safe descent. Failure to use it was not the primary or proximate cause of her falling. It cannot be said that in turning to the left she incurred such a manifest danger as to convict her of contributory negligence.

The appellant relies on Stevenson v. Pittsburg, Etc., Ry. Co., 219 Pa. 626, 69 A. 45, to support this contention. There, the plaintiff was held guilty of contributory negligence as the stairway was covered with ice which he observed when he stood at the top of the stairs. He used a handrail during part of his descent but released his hold on it without valid excuse, incurred a known risk, and was injured. In the ease at bar, there was no ice or other visible physical hazard when the plaintiff started down the stairs.

A careful consideration of this entire record leads us to the conclusion that the court would have committed clear error in withdrawing this case from the jury’s consideration.

Judgment affirmed.