Opinion
March 24, 1934.
April 30, 1934.
Negligence — Sign on store front — Erection with consent of owner — Control of owner — Opportunity to observe condition — Proximate cause — Contributory negligence.
In an action to recover for personal injuries sustained by plaintiff, resulting from contact with sharp edges of a sign on plaintiff's store premises, defendant was held not to be liable where it appeared that the sign was erected by defendant with the consent and for the benefit of plaintiff, who had exclusive control of the sign after installation and full opportunity to observe and guard against any dangerous condition.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 134, March T., 1933, by defendant, from order of C. P. Allegheny Co., July T., 1930, No. 4015, in case of Margaret McMasters v. Grennan Bakeries Company. Judgment reversed and here entered for defendant.
Trespass for personal injuries. Before MARSHALL, J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $4,500, remitted to $3,000, and judgment thereon. Defendant appealed.
Error assigned, inter alia, was refusal of judgment n. o. v., quoting record.
Herbert M. Kidner, with him John H. Sorg, for appellant.
J. Thomas Hoffman, with him Conrad H. Checco, for appellee.
Argued March 24, 1934.
Plaintiff recovered a verdict and judgment against defendant in an action of trespass, claiming that as a result of the negligent placing of a sign by one of its employees she had cut her hand, which became infected. The judgment entered against defendant was for $3,000 and it has appealed.
The material facts are these: Plaintiff kept a store in which she sold, among other things, cakes made by defendant. To build up the custom for them, defendant's employee solicited from her the privilege of placing on the front of her store a sign advertising its wares. She assented to this and the sign was nailed to the front of the building. A week or more after it had been so placed and while she was wiping the dust from the window on the front of the property, her thumb inadvertently and accidentally came in contact with and was cut by the sign which was below the window. The cut subsequently became infected. She said there was a sharp edge sticking up on the top of the sign which cut her. It is alleged that the sign had been negligently affixed to the building by defendant's employee in that it was not placed flush against the woodwork and consequently the edges, which were sharp and exposed, protruded, and that there was negligence in failing to have the edges of the sign ground down. Just how the sign was placed with reference to the woodwork the record does not make entirely clear. In its opinion the court below says there was no positive evidence that the sign was improperly placed other than the testimony of the plaintiff that it was nailed to the moulding, which was rounded.
On the record as it is presented to us we are not convinced that defendant's negligence, assuming it to have been established, was the proximate cause of the injury. We are entirely satisfied, furthermore, that plaintiff so contributed to her own injury as to bar recovery. If there was anything dangerous about the sign she had full opportunity to observe and guard against it. While she testified that she did not see the sharp edge of the sign because her "eyes was bad" and she "couldn't see so good," we are convinced, under all of the testimony, that had she made use of her faculties of observation the accident would not have happened; since she did not, she cannot recover: 45 C. J. 947, paragraph 507; Cooley on Torts, 4th edition, section 489, page 426; Stackhouse v. Vendig Co., 166 Pa. 582, 592.
We are also impressed with the fact that the sign was placed on the plaintiff's property with her consent. It was placed there for her benefit as well as for the defendant's benefit. It was under her exclusive control after it was erected. There was a duty on her under the circumstances to see that it was properly installed and maintained. Her failure to do so resulted in her own injury.
The judgment is reversed and is here entered for defendant.