Stewart v. Jermon , 5 Pa. Super. 609 ( 1897 )

Opinion by

Porter, J.,

The paper-book of the appellant is defective. Neither the charge of the court nor the notes of testimony are furnished. The facts seemed to be practically agreed upon as appears by the statements of the parties, and upon them as they thus appeared the case is disposed of. The plaintiff with her husband attended the theatre of the defendant on the evening of September 1, 1894. Passing out of the theatre there was the usual crowd of patrons. To avoid this crowd the plaintiff pressed close to the house line where she trod upon an iron grating covering a cellar window or door on the defendant’s premises. This iron grating was in such a condition that the plaintiff’s leg slipped through and she was injured. The case was submitted to the jury and a verdict was rendered in her favor. The sole question, as the case has been presented to this court, is whether there should have been instructions to the jury to find for the defendant.

On the facts thus stated, there can be no need of discussing the doctrine of King v. Thompson, 87 Pa. 365, and of Stackhouse v. Vendig, 166 Pa. 582. These authorities leave no doubt as to the law respecting the duties .of owners of property in the maintenance of the footway and of persons using the footways, under ordinary circumstances. Here the defendant invited an unusual crowd. He had reason to prepare for an unusual and excessive use of his footway. He was bound therefore to take the greater precaution. He owed a duty to the persons attending his theatre to see that they were not injured through any lack of care on his part of the property upon which they were invited.

We think this statement of facts presents a different case from the authorities cited by the appellant. It was clearly a question of negligence to be passed on by a jury. We find no good reason to disturb the verdict and the judgment of the court below is affirmed.

A motion for reargument made in the above case was refused in the following opinion:

Per Curiam,

October 22,1897 :

The consideration of this cause might well have been refused by this court by reason of the clear violation of its rules in the preparation of the appellant’s paper-book. A mistake of fact may easily occur where the court is furnished with neither the charge of the court below nor with a copy of the testimony. An examination of the testimony (furnished since the petition for reargument) has not changed the conclusions heretofore announced. The fact that the plaintiff had not attended the defendant’s theatre but another in the vicinity does not relieve the defendant from the duty of keeping his footway in a safe condition for use incident to a place of public entertainment where crowds of people are expected to collect, pass and repass.

The matter alleged in support of the motion for reargument is so immaterial as to be unworthy of further consideration.

The motion for a reargument is refused.