Appeal, No. 199, March T., 1952, from judgment of court of Common Pleas of Allegheny County, Oct. T., 1949, No. 954, in case of Harold E. Stevenson v. Pennsylvania Sports and Enterprises, Inc. Judgment affirmed; reargument refused January 6, 1953.
James J. Burns, Jr., for appellant.
John E. Evans, Jr., with him Evans, Ivory & Evans, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
Plaintiff obtained a verdict for $12,000 for injuries sustained when he fell down a flight of four steps located in the balcony of defendant's sports amphitheater, called The Gardens, located at Fifth Avenue and Craig Street, Pittsburgh. Defendant filed motions for a new trial and judgment non obstante veredicto. The lower court denied the motion for judgment non obstante veredicto and refused the motion for a new trial provided the plaintiff filed a remittitur of all of the verdict in excess of $9,000, which was done. Defendant now appeals, asking for (a) judgment non obstante veredicto; (b) a further reduction in the verdict; (c) a new trial.
On January 27, 1949, plaintiff, a manager for a chair rental concern, together with two assistants, drove to defendant's amphitheater to pick up some chairs owned by the concern which had been rented to the defendant for use the preceding evening. The west end of the amphitheater faces Craig Street while the south end runs along Fifth Avenue. After parking their truck on Fifth Avenue, the three men proceeded to load the chairs. Upon investigation plaintiff found that seven or eight of the chairs were missing. Thereupon he went to the office of the manager of the amphitheater and was told by him to look around for the chairs. (It is not disputed here that the plaintiff was a business invitee.) The amphitheater had the customary tiers of seats with a balcony, surrounding an arena. A search of the lower levels did not reveal the missing chairs, so plaintiff went to the balcony in his effort to find them. To the rear of the last seats in the balcony there was a walkway or aisle about three feet wide. Plaintiff was on the north side of the building and was walking from east to west. Consequently on his right was the wall of the building and on his
left were the balcony boxes. As he was walking along looking for his chairs, he fell down a flight of steps.
It developed that this flight of steps, about 40 inches in height, led down to a platform which ran for a distance of approximately 16 feet along and behind the press box and then another flight of steps would bring a person walking in the direction that plaintiff was going, up to the same level as before. A bannister or railing ran along the left side of the aisle behind the boxes. The back of the press box was six feet high (measured from the platform floor), and was of solid wood. The floor of the platform was concrete and was painted dark red.
The lighting in the area became the crucial issue in the case. It was variously described by the witnesses but all agreed that the only lights which were on were the lights over the center of the building where a hockey team was practicing in the arena. Plaintiff testified that "The general appearance was that the aisleway continued on straight through." and "The areaway there, due to the press box interference created a shadow in that particular section.". He also testified: "Q. As you walked towards that area going in the direction of Craig Street, what was the general appearance of the aisle as you reached that place? A. The general appearance was a continuation of the aisle as I walked through.... Q. Any shadow or any darkness that there was as you walked along was not noticed by you until after you fell; isn't that correct? A. I can only answer that as I did before, to me it led up as a straight areaway, the same as that in which I had been walking.... Q. Will you answer that? And then you can ...