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POLM v. HESSION (01/03/50)

January 3, 1950

POLM
v.
HESSION, APPELLANT



Appeal, No. 186, Jan. T., 1949, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1947, No. 3443, in case of Mrs. Margaret Polm v. Joseph Hession, trading as Bellevue Court Tavern. Judgment affirmed.

COUNSEL

Henry S. Ambler, with him Frank R. Ambler and Ambler & Ambler, for appellant.

Harry Goldbacher, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Stern

[ 363 Pa. Page 494]

OPINION BY MR. JUSTICE HORACE STERN

We are concerned here with a type of accident with which the courts have very frequently been called upon to deal, -- a person falling in a place insufficiently lighted.

[ 363 Pa. Page 495]

Plaintiff, together with an escort, visited defendant's tavern at the northwest corner of Chancellor Street and Bellevue Court, Philadelphia, on a Saturday evening at about 10:30 o'clock. There are three entrances to the tavern, two on the Bellevue Court side and one on Chancellor Street; plaintiff, who had never previously been on the premises, entered from Bellevue Court. While in the taproom she did not drink any alcoholic liquor. At midnight the bartender closed and locked the two doors on Bellevue Court, leaving the door on Chancellor Street as the only exit. A few minutes after twelve plaintiff and her escort started to leave. The bartender told her that she would have to go out by the Chancellor Street entrance; while her escort lingered to converse with the bartender plaintiff passed through the door leading to Chancellor Street; it opened into a closed vestibule in which a step led down from the level of the tavern floor; at the outer or street side there was a storm door in front of which two further steps led down to the level of the street. Plaintiff testified that the light in the ceiling of the vestibule was unlit, that the lights in the taproom itself were out except for some dim ones in back of the bar, and that it was "pitch" dark or "quite" dark in the vestibule; her escort described it as "absolutely" dark. As she proceeded through the vestibule she felt her way with her hand along the side wall, but, thinking that the top level continued outward further than it did, she fell from the first step, struck the storm door, and was found lying partly within the vestibule and partly on the lowest step toward the street. For the injuries she sustained she brought suit against the proprietor of the tavern. The jury returned a verdict in her favor and the court refused defendant's motions for a new trial and for judgment n.o.v. Defendant appeals.

The jury was clearly justified, if it believed plaintiff's testimony, in finding that defendant was negligent in

[ 363 Pa. Page 496]

    switching off the light in the vestibule at midnight, as he is said to have done, instead of letting it remain until plaintiff, as well as all his other patrons, had departed. The real question is in regard to plaintiff's contributory negligence, which is the ground upon which defendant relies for a reversal of the judgment. The legal principles applicable to such a case were set forth in Dively v. Penn-Pittsburgh Corporation, 332 Pa. 65, 69, 70, 2 A.2d 831, 833, as follows: "There is a multitude of cases of this type to be found in the reports, but they necessarily depend largely upon their individual facts. However, analysis would seem to justify their classification into two groups. There are those in which a person wanders around in a place absolutely dark and where, though not a trespasser, there is no reasonable necessity for his presence.*fn1 In such cases recovery is denied.... There are other cases where there is some fairly compelling reason for walking in a place*fn2 which, though dark, is not ...


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