Appeal, No. 32, March T., 1955, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 27, in case of Nick Karavas v. Arnast Poulos and Gust Mitchell, trading as Mitchell's Grill & Bar. Judgment affirmed.
Allen N. Brunwasser, for appellant.
Kim Darragh, with him Frederick N. Egler, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, Nick Karavas, brought an action in trespass against Arnast Poulos and Gust Mitchell, doing business as Mitchell's Grill & Bar, to recover damages for personal injuries sustained when he fell while attempting to seat himself on one of a number of stools at the counter in defendants' establishment. In the fall the plaintiff fractured his left hip. He also claimed that this fracture was aggravated because the defendants did not properly care for him after he was injured. After a jury trial there was a verdict for the defendants. Plaintiff filed a motion for new trial which was denied and plaintiff appeals from the judgment entered on the verdict, assigning trial errors.
Plaintiff's evidence as to the occurrence, consisting of his own testimony and that of his son-in-law, Jim
Kontos,*fn1 was as follows: Plaintiff entered the defendants' establishment out in Pittsburgh, at 10:30 P.M. on May 21, 1951 to await a telephone call from his daughter, Mrs. Kontos. He testified that he waited for the call for about two and one-half hours, during which time he stood at the bar and had three drinks of whiskey. Then, after he received the telephone call, he went to the restaurant part of the bar or counter and ordered a sandwich. While attempting to sit on one of the stools in front of the counter, he fell to the floor. His testimony describing the accident was: "... When my buttocks went up to sit, it went under me, and I grabbed the other chair for protection and it fell on top of me too. Q. What went from under you? A. The stool slipped from under me and I grabbed the other chair and that fell on top of me too.". The bartender, who came to his assistance, picked him up and placed him on a chair beside a table. Plaintiff testified that he suffered pain and cried out "... I am hurt. Take me to the hospital.". Kontos, the son-in-law, testified that as the result of a telephone call received by his wife "around" 12 o'clock, he went to defendants' establishment, arriving there approximately between 12:30 and 1 A.M. He found his father-in-law sitting on a chair, leaning on the table. Kontos had come in a truck and plaintiff was placed in the front seat of the truck where he sat while the son-in-law drove to the Kontos home in Dormont, several miles from the scene of the accident. He remained at the Kontos home until taken to a hospital around 7:30 or 8 o'clock in the morning, where it was discovered that his hip was fractured.
Defendants' version appears from the testimony of the bartender, the only witness called by them as to the occurrence. He testified that while waiting on other customers at the bar he heard a noise, turned around and saw plaintiff lying on the floor; that he didn't know what had happened but he picked up the plaintiff who was "white as a ghost", and sat him on a chair; that plaintiff asked that his daughter be called; that a waitress immediately called the daughter who said someone would come for her father; that upon being so advised plaintiff said he would wait. The bartender then resumed his customary duties.
In his complaint plaintiff charged that his fall was due to defendants' negligence in not having the stools fastened to the floor or otherwise safeguarding them from slipping on the floor which was "kept in a slippery and littered condition", and the failure to provide a rail to enable patrons to use the stools which were "higher than safety would require". Although the floor was smooth, there was no evidence that it was unduly slippery or in a "littered condition". The plaintiff gave no such testimony, although he stated that he frequented defendants' establishment. He also stated that the stool was "a good one". Kontos, the son-in-law, testified that he also frequented the defendants' place and was in and out of it twelve hours a day; that the floor was a "Clean, shiny, new floor", made of wood or rubber blocks similar to the floor in the anteroom of the court house. He also testified that all of the stools along the counter were alike, steel stools with four legs and a smooth plastic top. He did not state the ...