The opinion of the court was delivered by: MCVICAR
This is a civil action by Janet Caldwell and William Caldwell, her husband, against Sears-Roebuck and Company, to recover damages by reason of injuries to Mrs. Caldwell, alleged to have been caused by negligence of the defendant in placing or permitting sweepings to accumulate on a step of a stairway located in a store of defendant in the City of Pittsburgh, which was used by its customers.
At the trial, defendant submitted requests for binding instructions, on the ground that Mrs. Caldwell was guilty of contributory negligence and that defendant was not negligent. These requests were reserved. The court submitted the questions of defendant's negligence and of Mrs. Caldwell's contributory negligence to the jury, which returned a verdict in favor of the plaintiffs in the aggregate sum of $1500.
The action is now before us on defendant's motion to have the judgment entered on the verdict set aside; and if said motion is refused, that a new trial be granted.
Defendant, in its oral and written argument in support of its motion to set aside said judgment, argued only that Mrs. Caldwell was guilty of contributory negligence as a matter of law. It was contended that she could have seen, if she had looked, the debris on the step which caused her fall; of if she could not have seen it, it was by reason of packages which she voluntarily carried in her arms at the time she fell. I shall limit my discussion to this question.
The law applicable to the questions of negligence of the defendant and contributory negligence of Mrs. Caldwell, plaintiff, is the law of the Commonwealth of Pennsylvania. Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487.
The burden of proving contributory negligence of the plaintiff rests upon the defendant where the contributory negligence does not appear in plaintiff's presentation of her case. Herron v. Southern Pacific Co., 283 U.S. 91, 51 S. Ct. 383, 75 L. Ed. 857; Pokora v. Wabash Railway Co., 292 U.S. 98, 54 S. Ct. 580, 78 L. Ed. 1149; McManamon v. Hanover Township, 232 Pa. 439, 81 A. 440.
The Supreme Court of Pennsylvania has laid down the rule which should govern its courts in passing upon the questions of negligence and contributory negligence. In Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 287, 194 A. 194, 195, it is stated: "A court will not declare a person guilty of contributory negligence unless the evidence of his negligence is clear and unmistakable. In McCracken v. Curwensville Boro., 309 Pa. 98, 114, 163 A. 217, 222, 86 A.L.R. 1379, we quoted the following with approval from 26 R.C.L. pp. 1067-69, § 75: '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.'"
See, also, Vetter v. Great Atlantic & Pacific Tea Co., 322 Pa. 449, 455, 185 A. 613; Gunning v. Cooley, 281 U.S. 90, 50 S. Ct. 231, 74 L. Ed. 720.
Mrs. Caldwell, plaintiff, had a right to rely on defendant's performance of its duty to keep the steps upon which she walked in a reasonably safe condition for customers to walk thereon. In Vetter v. Great Atlantic & Pacific Tea Co., 322 Pa. 449, 455, 185 A. 613, 615, it is stated: "Defendant owed to the plaintiff the affirmative duty of keeping his premises reasonably safe for business visitors, such as plaintiff, and of giving warning of any failure to maintain them in that condition. Robb v. Niles-Bement-Pond Co., 269 Pa. 298, 112 A. 459; Markman v. Bell Stores Co., 285 Pa. 378, 132 A. 178, 43 A.L.R. 862; Newingham v. J.C. Blair Co. 232 Pa. 511, 81 A. 556; Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, 14 L.R.A., N.S., 1118; Starcher v. So. Penn Oil Co., 81 W. Va. 587, 602, 95 S.E. 28; Restatement, Torts, sec. 332 (see comment a). Plaintiff was entitled to rely on defendant's performance of this duty. Restatement, sec. 343 (see comment d); Yuhasz v. Pitt Const. Co. 305 Pa. 166, 157 A. 461; Adams v. Fields, 308 Pa. 301, 305, 162 A. 177; Blondin v. Oolitic Quarry Co., 11 Ind.App. 395, 37 N.E. 812, 39 N.E. 200; Gobrecht v. Beckwith, 82 N.H. 415, 135 A. 20, 52 A.L.R. 858."
See Murphy v. Bernheim & Sons, Inc., 327 Pa. 285, 287, 194 A. 194.
In Ross et al. v. Mayflower Drug Stores, Inc., 324 Pa. 513, 515, 188 A. 346, the Supreme Court of Pennsylvania states: "In Clark v. Lancaster, 229 Pa. 161, 164, 78 A. 86, 87, we said: 'She (plaintiff) admitted that she was not looking down on the ground as she was walking along, but was looking straight ahead. This, however, was not sufficient to convict her of contributory negligence, for it must have appeared that, if she had looked, she could not have helped seeing the danger.' This was substantially repeated in Gorman and Gorman v. Phila., 82 Pa.Super. 136; and in Ralston v. Merritt, 117 Pa.Super. 487, 490, 178 A. 159, 160, that court thus summed up the situation before it: "It is true that the injured plaintiff did not look at the floor until after she had arisen. But, in view of the alleged inadequate lighting conditions in the store, it might very reasonably be ...