Bream v. Berger

130 A.2d 708, 388 Pa. 433, 1957 Pa. LEXIS 464

Opinions

Opinion by

Mr. Justice Bell,

Plaintiff brought an action in trespass to recover damages for personal injuries against the owner and tenant of a store at 277 South 11th Street, Philadelphia. She intended to have a skirt dry cleaned. She had the skirt and her pocketbook in her left hand; she went to the store, which she had been in half a dozen times before, between 7:80 and 8:00 o’clock on the morning of August 3, 1953. The entrance to the store is recessed between display windows on either side. There is an 8%" step up onto the doorstep which leads into the store. The platform is 46" wide and from its outer edge to the door is 35%". The door consists of a frame door which opens into the store and a screen door which opens out toward the street. Plaintiff stepped up onto the doorstep and reached for the screen door which she said was closed; she believes this required two steps (forward) ; she pulled open the door and stepped back two steps, to allow for tbe sweeping arc of the screen door; on ber second step backward sbe landed on tbe pavement where sbe fell. Sbe does not recall where sbe was looking when she stepped back onto the pavement but thinks sbe Was looking at tbe signs in the window. It could be inferred from plaintiff’s testimony that tbe screen door, when it was ajar, left ber very little space to stand on tbe doorstep without stepping back on to the sidewalk. Of course, plaintiff must be given tbe benefit of tbe evidence which is most favorable to ber together with all reasonable inferences therefrom.

Footnotes

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For reasons unknown, defendants based their motion for judgment n.o.v. solely on tbe ground of plaintiff’s contributory negligence, instead of on tbe dual ground of want of negligence by defendants and contributory negligence by plaintiff. We shall, therefore,limit this opinion to tbe question of contributory negligence.

We are convinced that plaintiff was guilty of contributory negligence' as a matter of law: Druding v. Philadelphia, 374 Pa. 202, 97 A. 2d 385; Bartek v. Grossman, 356 Pa. 522, 52 A. 2d 209; Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A. 2d 754.

In Druding v. Philadelphia, 374 Pa., supra, the Court said (pages 204-205) : “Plaintiff was an invitee at tbe swimming pool and tbe City owed him tbe duty of reasonable care. However, as Mr. Justice Jones said in McCreery v. Westmoreland Farm Bureau, 357 Pa. 567, 570, 55 A. 2d 399: ‘There is no duty, however, upon the possessor of land to warn or guard a business invitee against a danger that is obvious.’ “ ‘No person is required to take extraordinary precautions to save adults in apparent possession of their reasoning faculties from the consequences of their own inattentiveness and carelessness . . . “Everyone has a right to proceed upon the assumption that those to whom he owes a duty of care are normal in every respect and prepared on their part to exercise the care of prudent persons generally” ’: Jefferson v. Y.M.C.A., 354 Pa. 563, 567, 47 A. 2d 653.

“ ‘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.” The well established rule that a victim cannot recover damages for injuries sustained by him if he could have avoided the injury by the exercise of ordinary care bars this plaintiff’s recovery.

This is not the case of a hidden danger, or of a danger that was obscured by another pedestrian, or by a worn or slippery or defective doorstep; this regrettable accident was caused by plaintiff’s thoughtlessness, carelessness or inattention. An adult who is able to walk does not have to take dancing lessons to be able to take two steps forward and two steps backward, even though one of the steps involves stepping up onto or down from an 8" elevation. If plaintiff could succeed in this case, a great many business people throughout Philadelphia (and Pennsylvania) would have to remodel their entrances and abolish display windows. It is, we believe, crystal clear that plaintiff could have avoided the accident by the exercise of ordinary care and a reasonable use of the senses which every normal person possesses. If she had used her senses and exercised reasonable care the accident could not possibly have happened.*

The Judgment is reversed and is here entered non obstante veredicto in favor of Benjamin Berger, Individually and Trading as Berger Cleaners, and Brith Achim Beneficial Association, a Corporation.

Defendants produced three witnesses who testified that plaintiff had been to the store many times before; that the screen door was tied open against the display window when plaintiff fell, and that when asked what happened she said “Clumsy me, just missed the step”. Of course, this evidence cannot be considered on this appeal.

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Plaintiff attempts to excuse her failure to look where she was going or consider what she was doing because she was looking at the display window. This ease is clearly distinguishable on its facts from Johnson v. Rulon, 363 Pa. 585, 70 A. 2d 325. Plaintiff’s looking at the display window would not be a sufficient legal reason to excuse her failure to use reasonable care in the simple act of stepping back from a doorstep onto the pavement.