Allison v. Snelling & Snelling, Inc. ( 1967 )

Opinion by

Mr. Justice O’Brien,

This case was brought under the wrongful death and survival statutes of the Commonwealth of Pennsylvania by Maude C. Allison, widow of the decedent and administratrix of his estate. After a trial lasting 5 days, the jury returned a verdict in favor of plaintiff in the amount of $65,000. This verdict, rendered in a lump sum, was eventually molded into separate sums; $62,000 in the wrongful death action, and $3,-000 in the survival action. The defendant thereafter filed motions for judgment n.o.v. and new trial. The motions were denied, and in conjunction with the denial, a remittitur was ordered in the amount of $5,000 on the wrongful death verdict. The remittitur was filed, judgment was entered on the verdicts, and these appeals followed.

On September 24, 1960, the defendant, Snelling and Snelling, Inc., was a tenant on one of the upper floors of a building located at 1501 Walnut Street in Philadelphia, the building containing a single elevator shaft and car, the regular operator of which was plaintiff’s decedent, employed by the building owner. At approximately 8:50 a.m., a vice president of defendant arrived at the building, and, after waiting a short period during which decedent did not arrive to operate the elevator, took the elevator himself and went to his office. (Decedent was due at work at 8:00 a.m.) The decedent arrived a few minutes after 9:00 and, according to an eyewitness, rang the bell of the elevator several times, then removed the key to the elevator door from a box, partially opened the elevator door, took a step forward, and fell into an empty shaft some 15 to 18 feet to the basement of the building. Decedent was critically injured and died in a hospital one week later.

“In considering a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom is considered in the light most favorable to the verdict winner.” Connolly v. Phila. Trans. Co., 420 Pa. 280, 216 A. 2d 60 (1966); Lewis v. United States Rubber Co., 414 Pa. 626, 202 A. 2d 20 (1964); Pritts v. Wigle, 414 Pa. 309, 200 A. 2d 386 (1964); Chambers v. Montgomery, 411 Pa. 339, 192 A. 2d 355 (1963), and in reviewing on appeal, we stated in Vignoli v. Standard M. Freight, Inc., 418 Pa. 214, 210 A. 2d 271 (1965): “The grant or refusal of a new trial will not be reversed on appeal, absent an abuse of discretion or error of law which controlled the outcome of the case.”

The defendant’s primary argument in the court below and on behalf of his motion for judgment n.o.v. was that plaintiff was contributorily negligent as a matter of law. The court below concluded that the testimony created a question for the jury and amply supported the verdict. With this conclusion we cannot agree.

The testimony of James T. Clark, an electrical engineer, reveals that the area surrounding the elevator door was not adequately illuminated, and this, along with the presumption that the decedent exercised due care for his own safety, provided the basis for the lower court’s denying defendant’s motion. In Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 194 A. 194 (1937), we said: “When one is moving in the dark he must proceed with the greatest caution and literally ‘feel his way around.’ ” In Murray v. Earl, 282 Pa. 517, 520, 128 A. 436 (1925), we said: “ ‘Where the entrance is dark, it would seem that ordinary care would condemn the act of a person who steps into an elevator shaft [knowing its location] without satisfying himself that the elevator is there.’ ”

As we said in Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A. 2d 754 (1941) : “The grievous error which plaintiff made was in accepting his reasoning faculties as the sole assurer of his safety. In the absence of sufficient light to enable him to see into the shaft he assumed that because the outer door was movable the elevator must be there. He thus placed improvident reliance on the perfection of the door-locking mechanism and on defendant’s supervision of it. No man of common caution will rely for his safety upon the watchfulness of others when his own senses are available to apprise him of likely imminent danger. 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.” (Emphasis in original) In Douville v. Northeastern W. Co., 337 Pa. 188, 10 A. 2d 394 (1940), we said: “. . . a person who approaches an elevator or an elevator shaft in a place so dark that scarcely anything is visible does so at his own risk and if, while thus enveloped in darkness, he is injured by colliding with an object or falling into a hole, he will be adjudged guilty of contributory negligence as a matter of law. Hoffner et ux. v. Bergdoll, 309 Pa. 558, 164 A. 607.” See also Bream v. Berger, 388 Pa. 433, 130 A. 2d 708 (1957); Brewster v. Morrone, 395 Pa. 642, 151 A. 2d 607 (1959).

It is to be noted that no one, aside from the decedent, was permitted to operate the elevator, and that the vice president of the defendant in doing so violated this rule. His testimony reveals that he removed the key, unlocked the elevator, and took it to the desired floor. Assuming that this conduct was negligent, we are still faced with decedent’s conduct and whether his activities constitute contributory negligence as a matter of law.

Mrs. Allison, decedent’s widow, was also employed by the building owners as a cleaning woman. Mrs. Allison testified that in addition to her duties as cleaning woman, she also operated the elevator when decedent was on vacation. She testified that the decedent had been employed by the building owners for 9 years the very day the accident occurred, and that the night prior to the happening of the accident, she, in the same manner as was customary, after cleaning the building, took the elevator to the first floor, left the inner gate open, as the outer door could not be operated if the inner gate were completely closed. She went on to relate the procedure for opening the elevator doors in the mornings in the following manner: It was necessary to get the key from a box near the door to open the heavy outer door. Pressure was applied downward on this key, and the door moved a few inches, and then the key would be removed. (Mrs. Allison testified at this point that there was sufficient light in the lobby to enable determination of whether the car was there and, although her husband wore glasses, he was quite capable of seeing.) After opening the door a few inches, the key would then be removed and the operator would use both hands to open the heavy outer door the rest of the way.

The record reveals that the decedent entered the building when lighting conditions were such that an eyewitness, George L. King, stated: . . I was able to read my paper by it very easily.” He further reveals that the decedent entered the building and came over alongside of him as he was standing by the elevator. He related that decedent rang the bell several times, then stated: “Ray must be in.” (the only logical inference that can be drawn from this remark is that he was referring to Louis R. Snelling, whom he knew as “Ray”), obtained the key from the box, went back to the elevator and opened the door while the witness was standing beside him. The witness further related that after decedent had inserted the key and opened the elevator door, he took a step forward and then disappeared. Mr. King, on cross-examination, related also that he had seen other tenants operate the elevator at various times.

In this connection, Mrs. Allison testified that if a person pushed the elevator button which controlled the buzzer, a buzzer sounded in the elevator car, and that a person pushing the buzzer button in the lobby could hear the buzzer sounding in the elevator car, even though the heavy outer door of the elevator was closed, when the elevator was as far away as the 4th or 5th floor of the building, albeit faintly. In such circumstances, it strains credulity to believe that the decedent, who had operated this elevator for a period of 9 years and who must have been thoroughly familiar ■with its operation, could be unaware that the elevator car was not at the first floor. The testimony is that he rang the bell several times. That being the case, he must have heard the faint sound of the buzzer sounding in the elevator car, which was then on the 4th floor, and knew, or should have known, that the car was not at the lobby level.

We have often said that there is a presumption that a person killed in an accident exercised due care. However, as we said in Watkins v. Prudential Ins. Co., 315 Pa. 497, 173 A. 644 (1934): “ 'Presumptions of fact are at best but mere arguments, and are to be judged by the common and received tests of the truth of propositions and the validity of arguments’: . . . ‘A presumption itself contributes no evidence, and has no probative quality. It is sometimes said that the presumption will tip the scale when the evidence is balanced. But, in truth, nothing tips the scale but evidence, and a presumption—being a legal rule or a legal conclusion—is not evidence. . . .’ ” In Heath v. Klosterman, 343 Pa. 501, 504, 23 A. 2d 209 (1941), we added: “. . . a presumption such as this is not evidence, and it cannot be weighed as evidence, since it gives way the moment proof to the contrary is presented.” In Rank v. Metropolitan Edison Co., 370 Pa. 107, 87 A. 2d 198 (1952), the administratrix of the estate of her decedent husband brought an action against Metropolitan Edison Company to recover under the wrongful death and survival acts, alleging that her husband’s death was caused by the defendant’s negligence. In that case, we said: “The presumption that a person who has lost his life exercised due care is not applicable where the plaintiff’s own testimony clearly establishes the decedent’s negligence: Weldon, Admrx., v. Pittsburgh Railways Company, 352 Pa. 103, 41 A. 2d 856; Simmonds v. Penn Fruit Company, 354 Pa. 154, 47 A. 2d 231. The instinct of self-preservation upon which the presumption is founded, was conspicuously absent here. The decedent’s unfortunate death was caused by his own unjustifiable conduct.”

We must conclude therefore, in the instant case, as in the Rank case, supra, that decedent’s death, although unfortunate, came about as a result of his own conduct, and as a matter of law, decedent was contributorily negligent. Beaching this decision, we need not, nor do we, consider any of the other issues raised by appellant in the instant case.

Judgments reversed and here entered for defendant, notwithstanding the verdict.

Mr. Justice Roberts dissents.