Appeal, No. 169, Jan. T., 1949, from judgment of Court of Common Pleas of Chester County, May T., 1948, No. 30, in case of John Johnson v. Charles Rulon et al., trading as McCardell Refrigeration Service et al. Judgment reversed.
Harold K. Wood, with him Reilly & Wood, for appellant.
Thomas C. Gawthrop, with him Theodore R. Griffifth, Morris F. Moore and Gawthrop & Gawthrop, for appellees.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff sued the defendant Rulon to recover damages for injuries suffered when he fell through a hole left by an opened trap door in the floor of a restaurant owned and operated by the defendant. Rulon brought upon the record, as additional defendants, alleged independent contractors, doing business as a partnership, whose employee, the defendant charged, had opened the trap door and had negligently failed to close it or to guard the opening. One of the partners answered and averred that the partnership had been dissolved prior to the accident; he impleaded, as an additional defendant, his former partner who, he averred, had succeeded to the partnership business and was the employer of the allegedly negligent workman. This additional defendant also answered and the case went to trial. At the close of the plaintiff's case, the learned trial judge entered a compulsory non-suit as to all defendants. The reason then assigned by the court for its action was that the plaintiff had been guilty of contributory negligence as a matter of law. Later, in denying the plaintiff's motion to remove the non-suit, the court en banc confirmed the action of the trial judge on the same ground but added as a further supporting reason that the plaintiff had failed to prove the defendant negligent.
In passing upon the lower court's entry of the non-suit, only the facts favorable to the plaintiff and the inferences to be deduced therefrom are to be considered unless, of course, the plaintiff, by his own unmistakable testimony, put himself out of court. It is only in a clear case, concerning whose facts the minds of reasonable men cannot honestly differ, that the entry of a compulsory non-suit is ever justified: see Gaines v. Philadelphia Transportation Company, 359 Pa. 610, 613-614, 59 A.2d 916, and cases there cited. On that basis, the following are the presently material facts.
About noon on January 12, 1948, the plaintiff walked from his place of employment in West Chester, Pennsylvania, to the defendant's restaurant (less than a square away) to get his lunch as had been his custom for about a year. He was sixty-nine years old at the time and an employee at a neighboring hotel where he worked "behind the desk" and "cleaning and sweeping." The restaurant was located at the northwest corner of Market and Walnut Streets and fronted twenty-five feet on Market Street; it extended back fifty feet along Walnut Street which runs north and south, crossing Market at right angles which, accordingly, runs east and west. There was an entrance door into the restaurant from each of the streets, toward the corner. The plaintiff entered by the Market Street door. On the right side of the room, as you entered from Market Street, a lunch counter stood parallel with the Walnut Street wall, about six or seven feet out from the wall; and, on the near side of the counter, there were stools for the use of patrons. Signs specifying the food for the day, with prices, were hung on the wall back of the counter. Along the directly opposite (or west) wall were booths with hooks on which patrons could hang their coats and hats. About three feet inside the Market Street entrance and slightly to the left there was a music box three feet square and five and one-half feet high; and two feet beyond the music box, there was a trap door in the floor which extended toward the rear of the restaurant. The trap door was eight feet long and three feet wide and lay longitudinally with the lunch counter and about six feet out from it. Looking directly to the rear of the restaurant from the Market Street entrance, the edge of the trap door, on the lunch counter side, extended out six inches beyond the line of the music box. The trap door was hinged on its long dimension away from the lunch counter and, when
opened fully, it lay back flat on the floor toward the booths.
The plaintiff, upon entering the restaurant, walked back between the lunch counter and the music box and, when past the music box, looked up to read the food signs on the wall. Turning to hos left to go hang up his coat and hat on a hook at the booths, he stepped into the opening in the floor, left by the opened trap door, and was precipitated into the basement below, receiving the injuries for which this suit was brought. The plaintiff had never before seen the trap door open although he had been an almost daily patron of the restaurant for a year. At the time here involved, the trap door was open and lying back flat on the floor; the ...