Appeal, No. 166, March T., 1949, from judgment of Court of Common Pleas of Westmoreland County, Feb. T., 1947, No. 267, in case of Theodore R. Carns v. John Noel, trading as Noel's Service Station. Judgment affirmed.
E. V. Buckley, with him Mercer & Buckley, Fred B. Trescher, Kunkle & Trescher and Christ C. Walthour, Jr., for appellant.
Robert W. Smith, Jr., with him Smith, Best & Horn, for appellee.
Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE PATTERSON
Theodore R. Carns, appellant, instituted this trespass action for personal injuries sustained when he stepped into a coal hole in the floor of a service station and garage owned and operated by John Noel, appellee, trading as Noel's Service Station, in the Borough of Ligonier. The trial judge directed a verdict for appellee and appellant filed a motion for new trial. The court en banc refused a new trial and this appeal followed.
On February 19, 1945, between 1:15 and 1:30 P.M., appellant entered the garage of appellee, carrying an automobile wheel with a flat tire, for the purpose of having the tire repaired. Leaving appellant in the fore part of the garage, near the office, appellee proceeded to his work bench at a rear corner of the garage, a distance of 38 feet away, to do the work. While waiting for the work to be completed, appellant walked toward the rear of the garage to a hoist, where he engaged another man in conversation for about five minutes, and then walked toward the work bench at the rear corner of the building, where appellee was engaged in vulcanizing the tube. In so doing, he stepped into an open coal hole, two feet square, near appellee's work bench. Unaware that he had been injured, appellant remained in the garage until the repairs to the tire had been completed, but later discovered that he had sustained the
injuries for which suit was brought. He testified that the rear of the garage was not properly lighted and he did not see the opening, although it was not totally dark.
There is nothing in the evidence to take the case out of the general rule that one who steps into darkened and unfamiliar space, and is injured, is guilty of contributory negligence as a matter of law: Barth v. Klinck, 360 Pa. 616, 62 A.2d 841. When at the close of his case he was asked to describe the general appearance of the hole compared with the surrounding floor, appellant testified, "It was dark, you couldn't tell no difference." However, despite persistent questioning by his counsel he refused to testify that he was misled by the appearance of the hole. On direct examination he testified: "Q. What prevented you from seeing it? A. It was darkness; it wasn't darkness but it was darker in that part of the building. Q. Was it the darkness of the floor or --? A. It wasn't just properly lighted. Q. You tell us what you observed as you walked there? A. Well, I just started to walk back and it was just darker than the rest of the building and I just kept on walking and the first thing I knew I was down."
No logical basis appears for distinguishing the present case from Bartek v. Grossman, 356 Pa. 522, 52 A.2d 209. There a prospective tenant was inspecting premises in company with and under the guidance of the prospective landlord's rental agent. While following the agent from a lighted room into a semi-dark room, he stepped into an open trap door, which he failed to see, sustaining serious injuries. The trial court directed a verdict for defendant, and plaintiff moved for a new trial which was refused. On appeal, this Court affirmed, stating (pp. 526, 527): "It is not the law of Pennsylvania that when a person walks into an opening in ...