Ayres v. Wanamaker , 220 Pa. 313 ( 1908 )

Opinion by

Mr. Justice Stewart,

The only assignment we have here to consider relates to the action of the court in refusing judgment non obstante. Whether it ivas negligence in the defendant to maintain a hatchway in the public pavement alongside his building, such as that into which the plaintiff fell, with no other protection than a booth, resembling in a general way the ordinary storm door inclosing it, and with nothing more to warn the public against the use of the door of the booth for entrance into the building than was shown in the case, was certainly a question for the jury. The right to maintain such hatchway beyond the building line isnot questioned; but an opening of this character in such a place, is so manifestly a source of danger to the public using the pavement, and especially to those seeking entrance to the building, that a duty devolves upon the party maintaining it, to put about it such guards as will afford reasonable protection, and such warnings as will be notice of any concealed danger. Whether the defendant did what was required of him in this regard, was not for the court to determine as matter of law, since the law has no fixed standard by which the plaintiff’s duty could be measured. However partial and imperfect the plaintiff’s testimony was, in regard to the character of the door at the entrance to the booth and the general situation, still, accepting the description given by him as correct as far as it went, we cannot say that the facts did not warrant an inference of negligence. The same may be said with respect to the question of contributory negligence on part of the plaintiff. What the law required of him was reasonable care under the circumstances. One could hardly be charged with want of ordinary care, if in entering one of the many doors of a large department store, he failed to look down to see whether his next step would lead him into the store or into an open hatchway. If the door he entered had the appearance of a door through which the public was invited to enter, he would have the right to presume, in the absence of any notice to the contrary, that he could pursue his course in safety. He would be lacking in the care required of him, if he attempted an entrance through a door in disregard of indications which would be sufficient notice to persons of ordinary prudence and circumspection, that it was intended for other uses. The fact relied upon chiefly by the defendant to charge plaintiff with contributory negligence, was that the door of this particular booth, according to the testimony of a witness called by defendant, was so constructed that it swung in and not out, and that on the outside of it there was a catch or hook that was fastened when plaintiff approached the door. The sufficiency of this catch or hook as a means of protection to the public, whether as a guard or notice, might well be questioned. -There is nothing in the evidence showing that plaintiff either observed it or that it was so placed and of such a character, that the ordinary prudent person' would have observed it; nor is there any evidence showing that plaintiff met with any resistance in opening the door. The witness who testified that the catch was there, saw the plaintiff enter the booth, and according to his testimony, the plaintiff simply pushed open the door and entered. He indicated nothing unusual in the degree of force applied.

The case was clearly for the jury on both questions; and it was committed to them with very full and clear instructions as to the law.

Judgment affirmed.