Appeal, No. 209, Jan. T., 1952, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1950, No. 1350, in case of Osceola Ellis v. John J. Drab and Samuel Scamby. Judgment affirmed.
Conrad G. Moffett, with him J. Taylor Buckley, for appellant.
John V. Lovitt, with him George E. Beechwood and Conlen, LaBrum & Beechwood, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from the refusal to remove a compulsory non-suit.
Viewing the evidence in the light most favorable to the plaintiff, the pertinent facts are as follows: At 2:30 A.M. on the morning of February 21, 1950, plaintiff went to his mother's apartment, which was on the third floor or a building owned and operated by the defendants. After ascertaining that his mother was awake, plaintiff left the apartment to go down the
stairs for the purpose of dismissing a waiting taxicab. The door of the apartment opened onto a three foot wide hallway which to the left of the apartment door constituted the landing at the top of the stairway leading from the third to the second floor. The bulbs in the lighting fixtures at the second and third floor landings were burned out and the hand-rail on the stairs which had been present a month previously was broken down or had been removed. Plaintiff testified that when he left the apartment he closed the door, thus putting the stairway in complete darkness, turned left and then right in order to descend the stairs; that when he attempted to reach for the hand-rail in the dark, he lost his balance, fell down the stairs and was injured; that he visited his mother three times in the six months preceding the date of the accident; and that upon the occasion of one visit, a month prior thereto, he noticed that there was a hand-rail.
In entering the non-suit the trial judge stated that while there was sufficient evidence of negligence on the part of the defendants, plaintiff was guilty of contributory negligence as a matter of law.
Appellant contends that the question of whether or not he was guilty of contributory negligence in relying upon his recollection of the position of the hand-rail and reaching out for it should have been submitted to the jury. In support of this contention appellant relies upon Vetter v. Great Atlantic & Pacific Tea Company, 322 Pa. 449, 185 A. 613, and Conboy v. Osage Tribe No. 113, 288 Pa. 193, 135 A. 729, for the proposition that whenever there is evidence of negligence on the part of the defendant in causing a fall down an unlighted stairway, the question whether or not the ...