Appeal, No. 241, Jan. T., 1954, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1952, No. 6314, in case of Edward Thompson v. Grace S. Goldman. Judgment affirmed.
John F. Naulty, for appellant.
Herbert A. Barton, with him Ward C. Henry and Swartz, Campbell & Henry, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff sued to recover damages for personal injuries sustained in a fall from the roof of the defendant's apartment house. The jury returned a money verdict for the plaintiff. Upon the defendant's motion, the court en banc entered judgment n.o.v. for the defendant on the grounds that the plaintiff failed to establish causative negligence on the part of the defendant and that he was guilty of contributory negligence as a matter of law. The plaintiff has appealed.
Viewing the evidence in the light most favorable to the verdict, the material facts are as follows. The plaintiff was employed as a cement finisher by a building contractor whom the defendant engaged to repair the outside of a window in a bathroom on the third floor of an apartment building owned by her. The building was three stories in height and shared a
party wall with an adjoining building. The first two stories of both buildings, for a portion of their respective widths, extended back some distance beyond the rear wall of the third story. Between these two projections to the rear, there was an areaway or open space extending upward for the full height of the two stories. The third floor bathroom window, which was to be repaired, was directly over the open areaway. On the roof of the two story portion of the defendant's building there was constructed what is commonly called a "flat", that is, a wooden platform fashioned by nailing boards to runners or beams lying on top and along the edge of the roof. The "flat" rested on, but was not physically fastened to, the roof and was, in the plaintiff's words, "used mostly for hanging clothes on." For that purpose, there were several 2" X 4" vertical posts attached to the beams lying on the roof. These uprights were connected by two parallel horizontal 2" X 3" rails so that the superstructure formed a sort of railing around the outside edge of the "flat". Access to the "flat" or platform was had through a third floor window which opened on to it.
The plaintiff's testimony fully describes the accident in suit. "... [The] boss and I together went to Mrs. Goldman's [the defendant's] house, and I took the plank and the stuff upstairs, and I was going to make a makeshift scaffold from one roof to another. ... [The] boss was standing in back of me, and I was going to brace myself against this railing. ... I asked the boss to get hold of the end of [the plank] in back of me until I braced myself, and I was going to push it across the areaway. ... I did not inspect the railing. ... I was stooped over. I was going to brace myself and give the plank a shove to the next roof. ... [As] I was getting ready to get hold of the plank,
this 2 by 3 [i.e., the lower rail] give way. I didn't have much weight on it at all, and the first thing my boss knew, he was up in the air on one end [of the plank] and I was on the other and. ... I grabbed hold of the plank ... and I had all my weight on it, any my fingers just slipped and I fell. ... I fell straight through the rail."
Assuming, without deciding, that the defendant's failure to inspect the roof platform for defects made her guilty of negligence, the plaintiff's contributory negligence denies him a right to recover.
Contributory negligence is conduct on the part of a plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff's harm: Good v. Pittsburgh, 382 Pa. 255, 114 A.2d 101; Kovalish v. Smith, 357 Pa. 219, 53 A.2d 534; Restatement, Torts, § 463. Contributory fault may stem either from a plaintiff's careless exposure of himself to danger or from his failure to exercise reasonable diligence for his own protection: Good v. Pittsburgh, supra; Restatement, Torts, § 466. In the instant case, the plaintiff's disregard of his own safety and his failure reasonably to protect himself are patent.
By his own admission, the plaintiff knew that the "flat" was not used as a porch but only as a place to hang out laundry. This fact was confirmed by his witness, the tenant of the third floor apartment, who testified that she "used the flat for hanging clothes. That is what it was put up for, to hang my clothes, and I also kept my trash box out there." She further testified that, about six months prior to the accident, she notified the defendant that an upright post, which held a clothes line, was "loose" and "falling". The
defendant hired the plaintiff's employer to make the necessary repairs. And, it was the plaintiff himself who did the actual work of shoring up the sagging post and bracing it to the floor of the platform. The plaintiff freely admitted his previous presence on the "flat"; in fact, a receipt acknowledging payment for "repairing platform flat on third floor" bore his signature.
Despite actual knowledge that the railing was not intended as a restraining barrier such as is ordinarily found on a porch and that, in any event, the railing had been weakened by time and weather, the plaintiff, obviously unmindful of his own safety, proceeded to place his weight against the railing without first testing its solidity. His explanation for not testing the railing was that it "looked solid" to him. But that, of course, does not excuse ...