Mogren Et Ux. v. Gadonas , 358 Pa. 507 ( 1948 )

This is plaintiffs' appeal from a refusal to take off a compulsory nonsuit. While a patron in the Blue Jay Restaurant, owned and operated by defendants, located at 22-24 West Main St., Norristown, Pa., Nancy Mogren, plaintiff, at or about 2 A. M. December 30, 1945, entered a darkened room which she believed to be the "ladies room". She fell through an unguarded hole in the floor and sustained severe injuries.

In their statement of claim, plaintiffs allege negligence on the part of defendants for failing to give proper and sufficient warning of the dangerous condition of the floor in the "ladies room"; in failing to have the hole in the room properly and sufficiently guarded, and in failing to provide proper and sufficient light in the ladies room and the hallway leading thereto to enable the plaintiff to detect and guard against the presence of the hole in the floor.

The wife plaintiff was in defendants' restaurant where tables and booths were. Over a door, which was closed, was hung a black and white painted sign marked "Ladies". Plaintiff went through the doorway, closed the door and proceeded along a partially illuminated corridor, at the end of which were piled nearly to the ceiling boxes and barrels. She testified: "I heard dishes rattling, and I just thought that [the end of the hall] was the kitchen, and I didn't go back that far, and the only other doorway in the hallway was the one I went into on the left, about, oh, I guess, about three yards down the hallway on the left. So I thought it was there; so I went in there, I opened the door, looked in and saw it was dark, and I stepped in to reach for the light, and I went down a hole." Plaintiff stated she advanced about a foot into the room when she was precipitated into the cavity in the floor and fell "at least four feet". The room was completely empty. After plaintiff extricated herself from the hole, she went to the counter where her husband was sitting, informed him of the accident, and requested that she be taken to the hospital. She was in the hospital 25 days. Upon her return home she was bedridden and required the attendance of a nurse. She claims she still suffers great pain and is unable to attend to her household duties.

At the close of plaintiffs' testimony, defense counsel successfully moved for a compulsory nonsuit based on plaintiff's contributory negligence. The court said: ". . . the plaintiff has established that she was guilty of contributory negligence so clear and so plain that just minds couldn't differ on it, that she intentionally walked into a room that was in total darkness, took a chance as to what she would meet in this room. So, since she didn't use a reasonable degree of care, she stepped into a room, in total darkness, and was injured, that would be contributory negligence as a matter of law, and she would be barred from recovery, no matter whether we went on with the trial of the case or you, the jury, would even give a verdict in her favor. . . ."

For a court to be justified in declaring a person contributorily negligent as a matter of law, evidence of such negligence must be so clear and unmistakable that no reasonable basis remains for an inference to the contrary. Murphy v.Bernheim Sons, Inc., 327 Pa. 285, 194 A. 194. "It is an established principle that if there is any credible evidence from which a reasonable conclusion can be drawn in support of the claim of either party in the trial of a case, the question must be left to the jury. . . . A verdict should not be directed if on all the facts and circumstances there is room for fair and sensible men to differ in their conclusions or, as it is sometimes stated, [if] the evidence is not such that honest minds could reach but one conclusion": 26 R.C.L. 1067-69, section 75. (Quoted with approval by this court inMcCracken v. Curwensville Boro., 309 Pa. 98, 163 A. 217, andMurphy v. Bernheim Sons, Inc., supra). The pivotal question, therefore, is: Would sensible minds differ as to whether or not plaintiff acted as a reasonably prudent person would act under the same circumstances?

It is incumbent upon restaurant owners to whose establishments persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof. "If, therefore, for example, a party invites others on his premises, he will be held to contemplate their presence there, and to know that dangerous conditions or appliances will likely produce injuries. A duty arises, accordingly, that the premises shall be reasonably safe for the purposes intended": Am. Eng. Encyclopaedia of Law, 2d Ed., Vol. 21, p. 471.

Plaintiff by entering a door marked "Ladies" and proceeding down a lighted corridor until she reached a door which she presumed led to the lavatory followed a course of conduct which an ordinarily prudent person would follow under like circumstances. Because of the piled boxes at the end of the passageway and the fact that the sound of rattling dishes emanated from that direction, plaintiff was justified in concluding that the "door to the left" led to the "ladies room" which the word "Ladies" over the door leading out of the restaurant undoubtedly invited lady patrons to enter. Plaintiff testified that the hole in the room was "about a foot inside of the door". Ordinarily, a person who follows an unfamiliar course in the dark and sustains personal injuries is guilty of contributory negligence. As a rule, darkness is in itself a warning to proceed either with extreme caution or not at all.

The law governing cases of this character was recently set forth in Bartek v. Grossman et al., 356 Pa. 522, 52 A.2d 209, by which case appellee contends this case is ruled. There is a vital difference between the two cases. In the Bartek case the victim "refused to avail himself of his sense of sight and in blind confidence followed the man who was ahead of him. Therewas no necessity of his doing so." (Italics supplied.) "Circumstances alter cases" and in the instant case there may have been a necessity for the plaintiff to find toilet accommodations without delay. The trial judge could not say as a matter of law that there was no such necessity. A patron of a restaurant has a right to assume that it has a toilet room for his or her use and that it is in a safe condition. When Mrs. Mogren saw the word "Ladies" over the door leading out of the restaurant, she was justified in interpreting that word as saying to her: "In this direction there is a toilet room for your use and you can enter it in safety". For a toilet room to be unlighted during these times when electricity is being conserved is not unusual. Patrons entering such a dark room "feel around" for the switch. Those entering a dark toilet room to which they are invited cannot be adjudged negligent as a matter of law.

In Modony v. Megdal, 318 Pa. 273, 178 A. 395, the syllabus (presumably written or approved by the writer of the opinion in that case) states that "One who unnecessarily moves about an unfamiliar place . . . when he cannot see anything, is . . . contributorily negligent. . . ." (Italics supplied.) In that case there was no such necessity for the plaintiff's action as there was in this case.

In Dively v. Penn-Pittsburgh Corp. et al., 332 Pa. 65,2 A.2d 831, Mr. Justice STERN speaking for this Court said: "The question of plaintiff's contributory negligence was undoubtedly for the jury. . . . It is common knowledge that lavatory and rest room accommodations are afforded to patrons in all large places of public exhibitions or amusements. Such facilities are as much a part of the premises to which patrons are invited as the auditorium itself, and plaintiff, walking into the alcove, over the archway of which was the sign 'Ladies,' was as fully within her rights, and entitled to as much protection, as when seated among the audience at the exhibition. Nor, under the conditions of insufficient light furnished in the alcove, should a court declare that she was guilty of contributory negligence because she failed to observe the proper door, especially as it was not marked by any appropriate sign: Clopp v. Mear, 134 Pa. 203. Seeing the opening at the side of the screen, she could reasonably assume that it was the appropriate means for reaching her destination: Restatement, Torts, sections 343, comment b."

In passing on questions of negligence, courts and juries must consider the realities of the situation. The standard of carefulness is the conduct under like circumstances of an average reasonable person possessed of ordinary prudence. To us it is clear that any prudent woman would have acted as Mrs. Mogren acted if confronted with the same necessity and in the same situation.

In passing judgment on another's alleged want of care under certain circumstances, justice does not require a holding that the actor's foresight should have dictated that unusual degree of prudent conduct whose erstwhile necessity in order to avoid the mishap is now so clear to the judge's hindsight.

The judgment is reversed with a procedendo.

Mr. Justice PATTERSON dissents.