Summary
In McVeagh et al. v. Bass, 110 Pa. Super. 379, 168 A. 777, 171 A. 486, 487, the dangerous condition existed where it was "so dark that she [plaintiff] could not see a thing" in a store not open for business.
Summary of this case from Vale v. Indiana County Theaters Co.Opinion
October 13, 1933.
October 26, 1933.
Negligence — Store room — Darkness — Customer — Falling down open stairway — Contributory negligence as matter of law.
A customer, who is injured by falling down an open stairway in a storeroom, is guilty of contributory negligence, as a matter of law, where it appears that the room was pitch dark when she entered; that she had never been in it before and did not know its lay-out, and that notwithstanding the darkness she started to walk forward when she could not see the floor under her feet.
Appeal No. 298, October T., 1933, by plaintiffs from order of C.P., No. 2, Philadelphia County, March T., 1932, No. 6331, in the case of Elizabeth McVeagh and Joseph McVeagh v. Jacob Bass, individually and trading as Bass Pharmacy.
Before KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Trespass to recover damages for personal injuries. Before STERN, P.J.
The facts are stated in the following opinion of the court below:
The court in this case granted the motion for judgment n.o.v. because it was of the opinion that the plaintiff Elizabeth McVeagh was guilty of contributory negligence, as a matter of law. She walked into a dark store where she had never been before. She knew nothing of the lay-out of the store. When she entered she turned to shut the door, and then, meaning to go to the counter, walked about three feet and fell down an open stairway. She said that it was so dark that she could not see a thing in the store, not even the floor under her feet; she could not see the counter and did not know where it was. Incidentally it may be added that she was blind in her right eye. Her daughter, who was with her, also testified that she could not see anything in the store, that she could not see anything ahead of her and did not know what was ahead of her.
Under these circumstances it seems clear to the court that the plaintiff cannot recover in this action. To enter a store where she had never been before and start to walk forward when it was so dark that she could not see even the floor beneath her feet, was an act of contributory negligence. This is all the more obvious in view of the fact that she was not bound by any duty to proceed into the store, but could have left immediately and purchased elsewhere as soon as she saw that the place was not open for business, or, even if it was, that it would be dangerous for her to proceed under the circumstances.
For these reasons the court granted the motion for judgment n.o.v.
Verdict for Elizabeth McVeagh in the sum of $800 and for Joseph McVeagh in the sum of $400. Subsequently the court entered judgment for the defendant non obstante veredicto. Plaintiffs appealed.
Error assigned, among others, was the entry of judgment.
Albert H. Wernick, for appellants.
Ward C. Henry of Swartz, Campbell Henry, for appellee.
Argued October 13, 1933.
The opinion of the learned court below, filed pursuant to Rule 58, fully justifies its action in entering judgment for the defendant non obstante veredicto. If, as may be possible, the plaintiff, and her daughter testifying on her behalf, exaggerated the darkness in the defendant's store, she must accept the consequences necessarily resulting from that testimony.
The judgment is affirmed on the opinion of the court below.