Ralph S. Croskey of Croskey & Edwards, Philadelphia, for appellant.
Gordon W. Gerber and Harry J. Gerber, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 173 Pa. Super. Page 12]
Appellee obtained a jury verdict of $850 in this trespass action and appellant's motion for judgment n. o. v. was overruled by the court below. Hence this appeal. In reviewing this case upon appellant's motion for judgment n. o. v. the evidence must be considered in a light most favorable to appellee, the inferences which may be drawn from it must be taken as true, and all unfavorable testimony and inferences must be rejected. Bross v. Varner, 159 Pa. Super. 495, 498, 48 A.2d 880. So considered, the evidence establishes that appellee, a guest of Mrs. Lillian Terrell, sustained a broken left ankle when her foot went through the kitchen floor in premises owned by appellant, but leased to Mrs. Terrell. Appellant, although under no duty to repair,*fn1 gratuitously undertook to repair the kitchen floor, which was sagging and which contained rat holes and loose boards. Appellant's carpenter spent several hours in and about the kitchen, replacing some of the floor boards and generally repairing the condition complained of by the tenant. About six weeks later, appellee sustained her injury.
Appellant contends that there was no proof that any repairs which had been made were made at the particular part of the kitchen floor where the injury occurred, that even if that had been established there was no evidence to establish negligent repairs.
[ 173 Pa. Super. Page 13]
Mrs. Terrell testified that the floor had loose and sagging boards and that she complained about the condition many times to appellant; that he finally sent a carpenter to repair it; that the carpenter worked 'around on the kitchen floor' and 'he was taking up old boards and putting down new boards.' Mrs. Terrell testified that she did not watch the carpenter except for a few occasions on which she came downstairs; that she let him out the door when he said he was finished. Mrs. Terrell was then examined as follows:
'Q. Did you walk on the kitchen floor after you came down and the carpenter had left? A. No, I didn't examine it, because I thought the floor was fixed.
'Q. What caused you to say that you thought the kitchen floor was fixed? A. Because he was working in there and he had new boards around the places in the floor, and I thought he had fixed everything. I didn't know.'
Then on cross-examination Mrs. Terrell testified:
'Q. Did you see them (the boards) in that same condition after he was through with his work? A. Well, it was not as bad after he had finished. It didn't ...