McAdoo v. Autenreith's Dollar Stores

109 A.2d 156, 379 Pa. 387

• Court: Supreme Court of Pennsylvania
• Decided: November 15, 1954
• Docket: Appeal, 60
• Status: Published

Opinions

Opinion by

Me. Justice Jones,

The plaintiff recovered a verdict for damages for personal injuries suffered when she was struck by the back-swing of a swinging door at the entrance to the defendant’s store on Forbes Street in Pittsburgh. The court denied motions for judgment n.o.v. and for a new trial without an opinion, the term of the judge who presided at the trial having expired shortly after entry of the order. The defendant appeals from the judgment entered on the verdict and assigns for error only the lower court’s refusal of the motion for judgment n.o.v. In support of the motion, the appellant argues that (1) the plaintiff’s injuries resulted from the intervening negligence of a third person, (2) the plaintiff failed to make out a case of causative negligence on the part of the defendant and (3) the plaintiff was guilty of contributory negligence as a matter of law. Viewing the evidence and the reasonable inferences deducible therefrom in the light most favorable to the verdict, as we are required to do, the material facts may be summarized as follows.

Patrons entering the defendant’s store, as did the plaintiff, step from the sidewalk into a display vestibule which connects with the store proper by means of a doorway closed off by double swinging doors. In the early afternoon of a January day, the plaintiff, a woman of forty-five, entered the display vestibule, intending to go into the store to make a purchase. She had been in the store on previous occasions and was aware that the swinging doors at the entrance swung in both directions. With her handbag under her left arm, she approached the “In” door on her righthand side and pushed it open , with her right hand. While in that position she observed a man, clad for the outdoors, who was walking toward the “Out” door on the plaintiff’s lefthand side. When she had cleared the doorway on her right, she started to vralk to her left, proceeding by putting her left foot forward; her right foot was then slightly in back of her. At that moment the door on her left, presumably from being released by the man who had appeared to be leaving the store, swung back into the store and struck her on the right foot and thigh. The force of the blow propelled her to the floor of the store against a counter about seven feet from the doorway, causing the injuries for which she brought suit.

The doors in question are constructed of lightweight wood and glass. The door on the right (to one entering the store) was two feet eight and one-half inches wide and the other door, two feet nine inches. There were no warning signs, dividers or railing barriers separating the doors. Each door was hung on three double action (Bommer type) hinges which permit a door to swing freely in either direction within its fixed arc. The Bommer type hinge is equipped with two spring barrels one of which is on either side of the door. The barrel springs are adjusted to equalize their tension so that the door stays on the transverse center line of the doorway when in its normal closed position. When the door is pushed open the motion winds the one spring, thereby increasing its tension and, concomitantly, the opposite spring is unwound which reduces its tension. As the door is released from an open position, the tension of the tightened spring causes the door to swing back which it ordinarily does to a point beyond the line of its normal closed position, thus creating a tension in the opposite spring which, in turn, causes the door to swing back the other way. During the diminishing progress of the oscillation, the tension in the two springs becomes equalized and the door comes to rest at its closed position where it remains •until pushed open again.

The plaintiff’s theory of liability is that the proximate cause of her injury was the defendant’s negligence in maintaining swinging doors on spring hinges without retarding or stopping devices so that the doors, after being pushed open, could not swing back with sufficient force to strike and throw a person to the floor. The plaintiff offered no testimony to show that the doors, hinges or springs were inadequate, improper, out of adjustment or defective in any way whereby their use was rendered unsafe. This failure of proof on the part of the plaintiff is the more significant in the light of the testimony of the expert called by the defendant who stated without contradiction that the Bommer type of hinge is the standard hinge used in some super markets, five and ten cent stores and moving picture theatres where lightweight doors are installed on wooden jambs such as in the entrance to the defendant’s store. He further testified that the Bommer type hinge was used in and about Pittsburgh in ninety per cent of the stores like the defendant’s, are still being extensively used and that he was installing them practically every week in industrial plants.

We pass over without discussion the defendant’s contentions that the plaintiff’s injuries resulted from intervening negligence of a third person or from her own contributory negligence. The important and controlling thing is that there was no proof from which the defendant’s causative negligence could be inferred save for the happening of the accident itself which, of course, is legally insufficient to establish liability. A possessor of land is not an insurer of the safety of an invitee; the standard of conduct required is merely reasonable care: Sheridan v. Great Atlantic and Pacific Tea Company, 353 Pa. 11, 13, 44 A. 2d 280. Indeed, the plaintiff concedes that if the defendant’s swinging doors were reasonably safe when used with ordinary care and in the manner followed by persons generally, the defendant fully discharged its legal duty to the plaintiff in the premises: cf. Graeff v. Philadelphia & Reading R. R., 161 Pa. 230, 236, 28 A. 1107. The question for decision, therefore, is whether the entrance doors provided by the defendant were reasonably safe for their intended purpose when used with ordinary care. The question is not, as the plaintiff assumes, whether the proximate cause of the plaintiff’s injury was the defendant’s failure to equip the doors with checks or retarding devices that would stop the backward swing of the door instanter on the line of its normal position when closed.

While use of customary methods, machinery or appliances is evidence of an exercise of reasonable care, such usage does not furnish a conclusive test on the question of negligence: Donnelly v. Fred Whittaker Company, 364 Pa. 387, 390, 72 A. 2d 61. In Hudson v. Grace, 348 Pa. 175, 181-182, 34 A. 2d 498, our present Chief Justice pertinently pointed out “In the piquant language of Mr. Justice Holmes: What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether.it usually is complied with or.mot’: Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468, 470. Or, as was said in Indermaur v. Dames, (1866) L.R. 1 C.P. 274, 288, 19 Eng. Rul. Cas. 64, 78: 'No usage' could .'establish that' what; was "in :fac.t .unnecessarily.'dangerous was im law reasonably- safe,;ns against persons.' towards', whom .there wag'a; duty'.to; .be careful.’ ” ; See, also, Maize v. Atlantic Refining Company, 352. Pa. 51, 57, 41.A. 2d 850. Mr the-instant .case :there is. not. a .scintilla .of: evidence that • the • defendant’s ¡swinging doors' deviated in any way frdm .ordinary and customary-, .usage; or, that libere- was .:any thing; .faulty, defective or dangerous in the design, construction or equipment of the doors. There was nothing, therefore, from which the defendant could be adjudged guilty of negligence on the basis of any established standard of care.

The deficient evidentiary situation in the instant case is strikingly similar to that disclosed in Miller v. Republic Chemical Company, 251 Pa. 593, 97 A. 73. There, the plaintiff alleged that the proximate cause of his injury was his employer’s failure to provide a crane instead of skids and a platform for unloading heavy pieces of machinery from railroad cars. The plaintiff produced two witnesses on this branch of the case, both mechanical engineers. The one gave it as his opinion that the crane method of unloading was the safer and the other expressed a like opinion. However, neither testified that the skid and platform method of unloading utilized by the defendant was not reasonably safe or that it was not in common use. In reversing a judgment for the plaintiff, Mr. Justice Stewart, speaking for this court, said (p. 598),— “Even were it admitted that the evidence was sufficient to warrant the conclusion that the crane method was the safer, it comes far short of showing a disregard of any duty on part of the defendant in not adopting it. A plaintiff can only prove negligence in such case as this by showing that the appliance used was not reasonably safe. Even though it he made to appear that it was not in ordinary use, such fact would not warrant an inference of negligence. ‘The party charged with negligence disproves it by showing that the tools he employed were those in general use in the business, but the converse does not follow. The party charging negligence does not show it by showing that the machinery was not in common use. If it should be so held, the use of the newest and best machine if not yet generally adopted, could be adduced as evidence of negligence’: Cunningham v. Ft. Pitt. Bridge Works, 197 Pa. 625.” The duty of a possessor of land to his invitee is no greater than that of an employer to his employee in respect of the appliances and equipment with which he provides his employees.

In White v. Board of Education of City of New York, 249 App. Div. 520, 293 N.Y.S. 70, which was a suit for damages for injury to a five-year old girl by having a finger caught in a swinging door in a classroom at school, the alleged negligence was “based solely on the absence of a door check on the door.” The evidence at trial disclosed that the door involved in the accident was a standard classroom door in the schools of Queens Borough and that the standard specifications for the construction of public schools throughout New York City did not require door checks on classroom doors. The jury gave verdicts for the plaintiffs. In reversing the judgments entered on the verdicts, the court said that, — “. . . the door here, in its condition on the day the accident happened, was not inherently or obviously dangerous because it lacked a stop. Of course, the accident probably could not have happened had there been a stop, but the mere happening of the accident does not indicate that it should have been anticipated. For untold generations school children have been passing without accident through doors not equipped with stops.”

In Smith v. Johnson, 219 Mass. 142, 106 N.E. 604, plaintiff sued for injury to a forefinger which was crushed by a swinging door in the vestibule entrance to the defendants’ store in Boston. The jury returned a verdict for the defendants whereon judgment was entered. On appeal by the plaintiff, the Supreme Judicial Court of Massachusetts affirmed, saying,— “We are of opinion that the record discloses no negligence on the part of the defendants. The doors, as described by the testimony and shown by the photographs, were of ordinary construction, and were substantially like those in general and common use for many years in Boston and elsewhere. There was nothing to show that they were not entirely safe when properly used by persons passing through them.” Smith v. Johnson, supra, was quoted from at length with approval by the Court of Appeals of Georgia in Sockwell v. Lucas & Jenkins Inc., 71 Ga. App. 765, 32 S.E. 2d 201, where a recovery was denied a plaintiff for an injury received while leaving the defendants’ theatre by a double swinging door which was not equipped with “any guards, screens or stops to prevent its swinging sharply and with force.” Notwithstanding the absence of “stops”, the Court of Appeals held that the plaintiff had “failed to prove that his injuries were the result of any negligent act of either defendant.”

The cases relied on by the plaintiff are not presently germane. In several of them the negligence alleged was not the failure to provide door checks for swinging doors but, rather, the failure to keep existing door checks in good repair. For example, in Young v. Bank of America National Trust and Savings Association, 95 Cal. App. 2d 725, 214 P. 2d 106, where an eighteen-month old child was knocked down and injured by a swinging door which had a defective door check, “there were two large bronze doors so hinged that each could be pushed either outward or inward . . . [and] equipped with devices known as double-acting door checks which, if in proper working order, would cause the doors to stop when they first reached the center or closed position and prevent them from swinging outward and inward after they had been released by a person who had passed through the doorway.” A patron having just left the hank, the released door continued to swing back and forth and, in consequence, struck and injured the child plaintiff who was toddling nearby. The evidence showed that the checking action on the door had not been operating for several months and that some three or four weeks prior to the accident the bank manager’s own grandson had been similarly injured by the same door. The bank’s negligence was in knowingly maintaining a defective door check, without the proper action of which, the door by reason of its size and weight was capable of injuring persons with whom it swung into contact. The cases of Todd v. S. S. Kresge Company, 384 Ill. 524, 52 N.E. 2d 206, and Martin v. Missouri Pac. R. Co., 253 S.W. 1083 (Mo. App.), are equally inapposite. Dolan v. Growers Outlet, Inc., 129 Conn. 158, 26 A. 2d 788, whose brief per curiam opinion the plaintiff cites, is contrary to what we believe to be the clear weight of authority.

The plaintiff argues that it is illogical to impose liability on one who provides a door check, albeit defective, and relieve another who provides no stop at all. The obvious fallacy in this reasoning lies in the fact that not all swinging doors, which are not equipped with checking or retarding devices, are dangerous if used with reasonable care. There may, of course, be swinging doors which, because of their size, weight or location, can be dangerous to those who use them unless automatically checked or retarded. But, that was not shown to be the situation in the instant case. And, the plaintiff failed to offer any evidence that the lightweight doors, as maintained by the defendant, were a dangerous instrumentality unless equipped with a check or retarding device. To permit a finding of negligence in such circumstances would be tantamount to requiring mechanical stops or retarders on all swinging doors used by the public.

The judgment is reversed and is here entered for the defendant.