Bartek v. Grossman

I must dissent because I am convinced that the learned court below erred in declaring plaintiff guilty of contributory negligence as a matter of law. It is admitted that the material facts are adequately set forth by the majority opinion, but I must voice my complete disagreement with the legal conclusion reached on the basis of those facts.

"Contributory negligence will be judicially declared only where it is so clear that there is no room for fair and reasonable persons to disagree as to its existence": Cox v.Scarazzo, 353 Pa. 15, 44 A.2d 294. There plaintiff walked through a swinging door which interfered with his vision, found his path barred by a truck on the sidewalk and stepped into an open delivery well in broad daylight, but his contributory negligence was held to be a jury question. When we apply the legal principles enunciated in that case to the factual situation presented by the record now before us, it leaves no doubt that here plaintiff's negligence cannot be declared as a matter of law.

The case of Dively v. Penn-Pittsburgh Corp., 332 Pa. 65,2 A.2d 831, while not perfectly analogous, contains many points of similarity with the instant case. There plaintiff, a business invitee, while proceeding to a rest room, entered an alcove in which there were no lighting fixtures and consequently no direct light, but only a subdued light reflected from the adjoining room. Plaintiff fell down a flight of stairs and was injured. A trapdoor which ordinarily covered the stairs, had been left open at the time of the accident. The following paragraph [pp. 69-70] of the court's opinion, by Mr. Justice HORACE STERN, is particularly pertinent here: "The question of plaintiff's contributory negligence was undoubtedly for the jury. There is a multitude of cases of this type to be found in the reports, but they necessarily depend largely upon their individual facts. However, analysis would seem to justify their classification into two groups. There are those in which a person wanders around in a place absolutely dark and where, though not a trespasser, there is no reasonable necessity for his presence. In such cases recovery is denied: Davis v. Edmondson, 261 Pa. 199; Hoffner v. Bergdoll, 309 Pa. 558; Modony v. Megdal, 318 Pa. 273; McVeagh v. Bass, 110 Pa. Super. 379; Hardman v. Stanley Co. of America, 125 Pa. Super. 41. There are other cases where there is some fairly compelling reason for walking in a place which, though dark, is not utterly devoid of light. Under such circumstances, contributory negligence will not be declared as a matter of law: Reid v. Linck, 206 Pa. 109; Haugh v. Harris Brothers Amusement Co., 315 Pa. 90; Murphy v. Bernheim Sons, Ltd., 327 Pa. 285; Leckstein v. Morris, 80 Pa. Super. 352; Rutherford v. Academy of Music, 87 Pa. Super. 355; James v. Smith, 93 Pa. Super. 485; Cathcart v. Sears, Roebuck Co., 120 Pa. Super. 531. It may be stated, therefore, that the controlling factors in determining the question of contributory negligence in accident cases of this nature are the degree of darkness and the justification for the injured person's presence in the place of danger."

Applying the law as set forth in Dively v. Penn-PittsburghCorp., supra, to the facts of the instant case, first we must analyze the evidence to determine the degree of darkness. At the time of the accident there was no artificial light of any kind. The testimony of plaintiff's son who inspected the scene of the accident immediately after his father was injured is helpful: "Q. Could you see anything in that rear room unless you turned on a flashlight? A. You could see part way. The light was shining in. You could see — would give you a faint illumination. You could notice where the white sink stood at. You could see the edge of that. Q. All you could see — you could see a little bit of the light from the — A. Where the light shines in the door. All you could see was the sink, and the floor right in front of the door. Q. All that you could see then as I understand you of this rear room, or what was in it, without having the flashlight on or some other artificial light turned on, was that portion of the floor immediately inside and directly in line with the opening in the partition and the white sink? A. Yes. Q. Is that right? A. That's right. Q. Did any of this light that shone in from the front through the door way in the partition, fall upon the trap door? A. No, sir. Q. You say that opening was at least six feet long? A. About six feet long. Q. And about thirty inches wide? A. About thirty inches wide and about three feet or a little better than that from the partition. That is the distance of it. One edge of it." The evidence definitely proves that the room was neither pitch dark or in broad daylight. It is clear that some subdued light was reflected from the adjoining room. The actual degree of darkness was a question of fact and therefore only a jury could determine it.

Plaintiff was not exploring an unfamiliar place alone but was being shown the room by an agent with the intention of renting it for business use if satisfactory. Surely plaintiff could place some reliance on his guide and not anticipate a dangerous condition on the premises. The conclusion seems inescapable then that plaintiff has shown complete justification for his presence at the place of danger. Under these facts the question of whether plaintiff exercised reasonable care, could only be determined by a jury. See also Kmiotek v. Anast, 350 Pa. 593,39 A.2d 923.

The cases relied upon by the majority opinion are not in point and do not control this case. In Bailey v. AlexanderRealty Co., 342 Pa. 362, 20 A.2d 754, plaintiff walked to the elevator shaft on the ground floor of a hotel and finding the door partly open and the interior dark, walked through the opening and fell down the shaft. It is obvious that the facts are not even remotely analogous to the instant case. In Hoffnerv. Bergdoll, 309 Pa. 558, 164 A. 607, another elevator case, plaintiff tried to excuse her negligence in stepping into an open elevator shaft by saying she relied upon a fellow employee. There was absolutely no reason for her to rely on Green, her fellow employee, because they were both employed by defendant and were equally familiar with the premises. Likewise, each of the other cases cited in the majority opinion, is completely different from the instant case in its factual situation, and, therefore, easily distinguishable.

Plaintiff here entered a back room, which was not entirely without light, as a business invitee. He was under the agent's guidance and had not been warned of the dangerous condition. The injury was sustained while he was pursuing a reasonable and proper business purpose and the question of whether he exercised the proper degree of care was for the jury. For these reasons the action of the learned court below should be reversed and a procedendo awarded. Mr. Justice HORACE STERN concurs in this dissent.