Opinion
Argued January 4, 1950.
March 20, 1950.
Negligence — Possessor of land — Condition — Steps — Smoothness.
Where plaintiff, a business visitor, fell while descending a stairway in defendant's restaurant and plaintiff testified that the step on which she slipped, which was clearly visible, was smooth as glass, it was Held that the evidence was insufficient to prove negligence.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 128, Jan. T., 1949, from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1948, No. 2393, in case of Sidney Novek et ux. v. Horn and Hardart Baking Company. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion, per curiam, of the court below, as follows:
The plaintiffs sued to recover damages for personal injuries sustained by the wife plaintiff while a customer in the defendant's restaurant. The complaint set forth that while descending a stairway to the rest rooms provided by the defendant for the use of its patrons, Mrs. Novek tripped, fell and was hurled to the bottom of the stairway, suffering the injuries of which she complained. The negligence averred was that the defendant permitted the steps on the stairway to become worn and smooth rendering them unsafe.
At the trial Mrs. Novek described the steps as having metal treads which were worn and rather narrow, about 3 to 3 1/2 feet wide, with a handrail at the left side. As she reached the fifth step from the bottom she fell. That she turned around after falling to see why she fell and the step was smooth as glass, upon which she drew the conclusion that the smoothness of the step caused her to fall.
She had been down the step before and had never noticed that they were worn but had noticed that they were always dirty and on this occasion they were wet. There was no complaint of lighting conditions at the time and it may be assumed that they were adequate as the plaintiff was able to see the step from the bottom of the stairs after she fell. Her husband, who visited the restaurant the next day, also testified that the steps were all smooth but the 5th step from the bottom was smoother than the others, as smooth as glass.
There was no complaint or evidence of improper construction; the only cause assigned for the plaintiff's fall was that the step was smooth. The Trial Judge did not consider this sufficient evidence of the defendant's negligence to take the case to the jury and with this we agree.
We think the plaintiffs have failed to bring this case within that class where the tread of a step has become so defective that the dangerous condition should have been discovered by proper inspection. It was said in Copelan v. Stanley Co., 142 Pa. Super. 603, that "any floor or any step that wears with time, will be slippery . . . The degree of the slope of the tread of the step and the extent to which it was worn do not definitely appear and in the absence of testimony of a dangerous condition which defendant in the exercise of reasonable care should have observed and corrected, there is no evidence of actionable negligence".
The condition of the stairway was apparent, for the plaintiff said she could see the steps ahead of her as she went down them. We think the non-suit was properly entered and the motion to take it off is overruled.
Plaintiffs appealed.
I. Finkelstein, with him Joel E. Mazor, for appellants.
Peter P. Liebert, 3rd, with him John J. McDevitt, 3rd, for appellee.
The judgment of the court below is affirmed on its opinion.