Falen Et Ux. v. Monessen Amusement Co. , 363 Pa. 168 ( 1949 )

The decision of the majority in this case is not supported by the facts or the law. As said by the present Chief Justice inBartek v. Grossman, 356 Pa. 522, 526, 52 A.2d 209 "It is not the law of Pennsylvania that when a person walks into an opening in semi-darkness the case is always for the jury." In that case a prospective tenant, who stepped into a semi-lighted room while inspecting the premises in company with the landlord's agent and was injured when he stepped into an open trap door which he failed to see, was held to be contributorily negligent as a matter of law. A similar result was reached in the case of Bailey v. Alexander Realty Co., 342 Pa. 362,20 A.2d 754, where the plaintiff walked to an elevator shaft on the ground floor of a hotel and, finding the door partly open, walked through the opening, fell down the elevator shaft, and was injured. This Court there said (p. 367): "There is no rule which says that if a man walks into an open elevator shaft in semi-darkness, the question of his negligence must be submitted to the jury. . . . If while in semi-darkness he does not use his sense of sight or his sense of feeling, as a guide, but walks into an opening merely because he assumes that the elevator is at the floor, he is in law guilty of negligence. If in semi-darkness he uses his sense of sight as carefully as he can and reasonably believes he can 'see his way' and if hissense of sight deceives him, he may or may not be guilty of negligence and the question will be for the jury." (Italics supplied.) See also Murphy v. Bernheim Sons, 327 Pa. 285, 194 A. 194; Hellriegel v. Kaufmann BaerCo., 337 Pa. 149, 9 A.2d 370.

The testimony of Mrs. Falen, the wife-appellee, does not warrant an inference that her sense of sight deceived her into believing that the open space was a sidewalk. On cross-examination she testified as follows: "A. I seen this wall and I stepped on it, it happened so quick that I didn't have time to do anything. I stepped right in, I thought I was stepping up on the sidewalk. . . . Q. And you didn't look to the right? A. Couldn't see, it was dark down in there, you couldn't see. . . . Q. Why didn't you wait before you took the second step to see where you were stepping? . . . A. Well it was dark in there. Q. Why didnt you wait before you took the second step to see where you were stepping? A. Well, it was dark and I was just walking that is all. Q. And you stepped right into something that you didn't know was there? A. That is right, it was dark in there. Q. And you didn't wait to find out where you were stepping, did you? . . . A. No, I didn't." Far from supporting the contention that wife-appellee's eyesight misled her into seeing a sidewalk, where none in fact existed, her own testimony affirmatively establishes that she failed to use either her sense of sight or her sense of feeling as a guide, but relied exclusively on her reasoning powers and walked into the open space merely because the retaining wall had the appearance of a curb, from which she assumed that there was a sidewalk beyond it.

If a recovery is permitted under the evidence presented, then it must follow from the reasoning of the majority that a recovery would likewise be allowed if, upon seeing the retaining wall and concluding that it had the appearance of the curb of a sidewalk, Mrs. Falen had proceeded, without further observation as to where she was walking, and stepped into the opening in broad daylight. Such is not the law of this Commonwealth under the decided cases. Here, as in Bailey v. Alexander RealtyCompany, supra, "The grievous error which plaintiff made was in accepting [her] reasoning faculties as the sole assurer of [her] safety." Without sufficient light to see where she was stepping, she assumed solely from the appearance of the retaining wall that a sidewalk must be there. There was no necessity to find toilet accommodations in this case as inDively v. Penn-Pittsburgh Corporation, 332 Pa. 65, 2 A.2d 831, relied upon by the majority, or evidence of other compelling necessity, and therefore the general rule applies that one who follows an unfamiliar course in the dark or steps into darkened and unfamiliar space and sustains personal injuries is guilty of contributory negligence as a matter of law: Conboy v. OsageTribe No. 113, 288 Pa. 193, 135 A. 729; Barth v. Klinck,360 Pa. 616, 618, 62 A.2d 841.

The judgments should be reversed and judgments non obstanteveredicto here entered for appellant.