F. Hastings Griffin, Jr., H. Francis DeLone and Barnes, Dechert Price, Myers & Clark, all of Philadelphia, for appellants.
John J. McDevitt, 3d, Peter P. Liebert, 3d, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, and Arnold, JJ.
[ 170 Pa. Super. Page 83]
This is an appeal from the refusal of defendant's motion for judgment n.o.v. after verdicts and judgments in favor of the plaintiffs for damages for personal injuries sustained by the wife-plaintiff when she fell on the premises of defendant railroad company.
Husband- and wife-plaintiffs were the holders of passes issued by defendant, entitling them to designated free transportation over defendant's system. The husband, Salvatore Lanni, had been in defendant's employ for 39 years. On September 18, 1946, plaintiffs used these passes on a trip from Philadelphia to Harrisburg. Returning at about 3:30 in the afternoon, they got off defendant's train at its North Philadelphia station and proceeded to walk from the platform through the station building, and along the sidewalk parallel to the south side of the station toward Broad Street, where they planned to take a street car to their home. It was a clear day and the pavement was dry. The sidewalk ends and leads into a driveway which must be traversed by pedestrians in order to reach Broad Street. The driveway is for the use of motor vehicles taking passengers to and from the station, and vehicles are frequently parked parallel to the curb.
Defendant mentions, but does not press, the argument that the release of liability on its part contained in plaintiffs' passes is valid, recognizing that the point is ruled against it by the decision in Turek v. Pennsylvania R. R. Co., 361 Pa. 512, 64 A.2d 799. It raises no question as to contributory negligence of plaintiff, and the sole issue in the case is whether the defendant had constructive notice of the dangerous condition on its land which caused plaintiff's injuries.
The defendant argues that in refusing its motion for judgment n.o.v., the court below misapplied the familiar doctrine that on consideration of such motion the evidence must be taken in the light most favorable
[ 170 Pa. Super. Page 84]
to the plaintiff, in that in this case the court was not resolving conflicts in testimony between plaintiff and defendant, the latter having offered none, but was resolving conflicts in the plaintiff's own case, and in support thereof cites Roche v. Pennsylvania R. R. Co., 169 Pa. Super. 48, 82 A.2d 332. We find no merit in this contention.
The wife-plaintiff testified that when they reached the end of the sidewalk and were about to descend from it to the driveway, she noticed a patch of dust and dirt on the driveway 'immediately off the sidewalk' which was the same color as the roadway in appearance, and that as she stepped down she suddenly slipped and fell, sustaining the injuries complained of. She testified that she had made no effort to avoid stepping on the spot because its appearance was simply that of dust and dirt, 'the same color as the sidewalk', but that after she fell it was discovered that the dust covered a square of oil or grease which she estimated to have been the size of her body. The husband-plaintiff described the markings of where her foot had slipped as 'about ten or twelve inches long'. Mrs. Jeane Klein, plaintiffs' witness, testified:
'Q. Can you describe in more detail just where the skid mark was and what it looked like? A. Well, it was near the end of the curb. The only thing I saw was a big ridge which led me to believe it was grease in preference to oil because you ...