Burton v. Horn & Hardart Baking Co.

88 A.2d 873, 371 Pa. 60, 63 A.L.R. 2d 731, 1952 Pa. LEXIS 400

• Court: Supreme Court of Pennsylvania
• Decided: May 29, 1952
• Docket: Appeal, 165
• Status: Published

Opinions

Opinion by Mr.

Jtjsttce Chidsey,

This is an appeal from a decree by the Court of Common Pleas of Philadelphia County refusing to take off a nonsuit in a trespass action for personal injuries.

Plaintiff, a 76 year old woman at the time of the accident, slipped as she was going down the steps leading to the ladies’ room in one of defendant’s restaurants. The accident occurred on November 21, 1949, about 11:20 a.m.

The steps were 44 inches wide and after a series of three steps there was a landing and a number of steps leading to the basement and the ladies’ room. These steps had handrails on both sides and were well lighted. The plaintiff and her daughter testified that, after reaching the landing, the plaintiff slipped on the top step of the second series. At the time plaintiff slipped she had hold of the railing on her right side, her daughter was supporting her left arm and also holding onto the railing on the other side.

The only testimony relied on to hold the defendant liable is as follows: Plaintiff testified, “. . . I step a little bit and after this I step with the left foot on the step, and I step the first step, and I don’t know what’s the matter; it was slippery, I don’t know, and I fell down.” And again she said, “Maybe it was a little bit slippy, the steps.” Her daughter testified, “. . . I saw that the steps were wet, as though they had just been wiped down.” When asked to describe the wet condition of the steps, she replied, “Well, I would say when I would wipe my steps down, you know, with a wet cloth, wash them down, they were wet; it wasn’t pails of water, anything like that on them; it was just, you know, as though they had just been wiped down.” She further said, “I would say something like slightly wet; damp wouldn’t be wet enough.”

Thus, in summary, all that plaintiff’s evidence established was that she slipped on steps that were slightly wet, apparently because they had just been washed. The words of Mr. Chief Justice Drew (then Mr. Justice Drew) in Bowser et ux. v. J. C. Penney Company, 354 Pa. 1, 46 A. 2d 324, state the general rule, at p. 4: “The real question is not whether there was an improper application but whether such alleged improper application created a condition so obviously dangerous as to amount to evidence from which an inference of negligence -would arise:”. In this case there was no such evidence.

In Flora et ux. v. Great Atlantic & Pacific Tea Company, 330 Pa. 166, 198 A. 663, which appellant relies upon, there was water and slush on the floor which the owner recognized as dangerous and failed to correct. The instant case is also distinguishable from Brand v. Donahoe’s Incorporated, 357 Pa. 474, 55 A. 2d 362, where plaintiff slipped because soap was permitted to remain on the floor. In that case, although this Court upheld a verdict for the plaintiff, Mr. Justice Patterson said, p. 477, “Certainly, it is not negligence to wash a floor and proof of an improper washing must be had.”

Under the view we take of this case it becomes unnecessary to consider whether the evidence was sufficient to warrant an inference that the defendant had notice of the condition because it was its employe who had washed the steps.

Appellant also contends that the trial judge improperly ruled certain evidence inadmissible. At one point in the trial the daughter was not permitted to state what she said to the manager of the defendant’s restaurant shortly after the accident. It appears in the record that the manager did not answer her. Plaintiff’s theory of admissibility must therefore depend upon an admission by an agent through silence.¹ But, “The maxim ’silence gives consent’ is not an Invariable and precise rule of evidence. ’The general principle of relevancy tells us that the inference of assent may safely be made only when no other explanation is equally consistent with silence.’ Wigmore on Evidence, 3rd Ed., §1071.” Smith et ux. v. American Stores Company, 156 Pa. Superior Ct. 375, 379, 40 A. 2d 696; Moore v. Smith, 14 S. & R. 388, 393. In the instant case the manager’s silence may well have been motivated by a desire to avoid a dispute with this customer whose mother had just been injured. We therefore decide that such evidence was properly rejected.

The court below also rejected an offer by plaintiff’s counsel to prove by an expert witness that the steps were improperly constructed in that they failed to have an abrasive material in them or a safety tread and that terrazzo steps are slippery and dangerous when wet. Expert testimony is inadmissible when the matter can be described to the jury and the condition evaluated by them without the assistance of one claiming to possess special knowledge upon the subject: Jacob v. Philadelphia, 333 Pa. 584, 5 A. 2d 176; Miller et al. v. Philadelphia, 345 Pa. 1, 9, 25 A. 2d 185 (where this Court, speaking through Mr. Justice Linn, upheld the refusal of expert testimony of an architect regarding the unsafe maintenance and construction of a trail in Fairmont Park). Defendant was not required to use the best construction or material but only had the duty to supply a reasonably safe place: Miller v. Philadelphia. supra; Copelan et ux. v. Stanley Company of America, 142 Pa. Superior Ct. 603, 17 A. 2d 659.

Finally plaintiff contends that certain literature published by the National Safety Council regarding slippery floors and what should be done to terrazzo steps should have been admitted into evidence. These exhibits are subject to the same objection as the expert testimony.

Judgment affirmed.

1 Actually counsel made no offer of proof of wliat the daughter said to the' management, did not raise the point specifically in his motion for a new trial and suggested to the court that the testimony was admissible on the question of notice. Obviously, such testimony was not admissible to prove notice of any dangerous condition since the accident had already happened.