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SCHAFF v. MELTZER. (05/23/55)

May 23, 1955

SCHAFF, APPELLANT,
v.
MELTZER.



Appeal, No. 76, Jan. T., 1955, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1952, No. 430, in case of Paul Schaff v. Jacob A. Meltzer, Max M. Meltzer, August F. Meltzer and Herman Meltzer, trading as A. Meltzer. Judgment reversed.

COUNSEL

Nathan Berlant, with him Matthew Kramer, for appellant.

Ralph S. Croskey, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 382 Pa. Page 44]

OPINION BY MR. JUSTICE MUSMANNO

On September 18, 1950, the plaintiff Paul Schaff, having purchased on the third floor of the defendants' establishment a consignment of shoes, was asked by the defendant Herman Meltzer to use the stairs, instead of the elevator, in descending to the exit on the first floor. The area surrounding the staircase was shrouded in darkness so that when the plaintiff arrived at the stair landing he attempted to throw some light on the situation by turning the electric switch. The switch, however, failed to work, whereupon Schaff decided to return to ask Meltzer to convey him to the first floor, after all, by means of the elevator. But as he started back he tripped over an irregularity in the level of the floor boards and, feeling himself about to fall, he seized hold of a handrail attached to the wall, the rail pulled loose, he lost his balance, plunged down 17 stairs to the second floor, and understandingly sustained serious injuries.

He brought an action against the store owners in the Court of Common Pleas, Philadelphia County, but was nonsuited and in the due course appealed here.

[ 382 Pa. Page 45]

The learned Court below was of the impression that the plaintiff's case depended alone on his assertion that he tripped over some defect in the floor. The Complaint, however, avers that the defendants were negligent in various ways, to wit: 1. The defendants permitted the "stairway and the platform and steps and the railing thereof to be and remain in a dangerous, negligent and defective condition"; 2. The defendants failed "to afford sufficient, proper or adequate lighting at the said point"; 3. The defendants "gave to the plaintiff no notice or warning thereof, so that the plaintiff was caused to trip, stumble and fall and be thrown violently ..." (Emphasis supplied.)

If anyone of these conditions was proved by the plaintiff to have been the proximate cause of the accident, or, if all these conditions together made out a case of prima facie negligence, he was entitled to have his case go to the jury. We have asserted on numerous occasions that: "A store owner who invites the public to do business on his premises, although not an insurer of the safety of the invitee, has the affirmative duty of maintaining his premises in a reasonably safe condition for the contemplated use thereof and for the purpose for which the invitation was extended, or to give warning of any failure to maintain them in that condition." (Jerominski v. Fowler, Dick & Walker, 372 Pa. 291, 295.)

Were the premises safe? It was shown that the floor boards were irregularly laid, with some of them rising one-eighth of an inch higher than others. The plaintiff testified: "As I turned to go back, my foot caught in the raised board." While an impediment one-eighth of an inch high seems a rather slight elevation against which to trip, it is a matter of common human ...


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