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CLEWELL v. PUMMER. (03/13/56)

March 13, 1956

CLEWELL, APPELLANT,
v.
PUMMER.



Appeals, Nos. 54 and 55, Jan. T., 1956, from judgments of Court of Common Pleas of Bucks County, May T., 1953, No. 52, in case of Harry Clewell et ux. v. Frank Pummer et ux. Judgments reversed; reargument refused April 6, 1956.

COUNSEL

Laurence H. Eldredge, with him William M. Power and Paul A. McGinley, for appellants.

Frederick E. Smith and Sidney L. Wickenhaver, with them Robert L. Trescher, C. William Freed, Ross & Smith, and Montgomery, McCracken, Walker & Rhoads, for appellees.

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

Author: Musmanno

[ 384 Pa. Page 517]

OPINION BY MR. JUSTICE MUSMANNO

The California House in Bucks County near Quakertown is a three-story country hotel with many of the limitations associated with that type of hostelry. It is without elevators or outside illumination but it does have a bar on the first floor. On the night of June 2, 1951, the plaintiffs in this case, Harry Clewell and Helen Clewell, his wife, called to visit Mr. and Mrs. Raymond M. Schaffer (Raymond Schaffer is brother to Mrs. Clewell), who lived in an apartment on the third floor. They entered the establishment through the barroom whose lights directed attention to the door which opened into that part of the hotel. A second outside door led into a center hall accommodating a staircase with steps climbing to the second and third floors.

After visiting with the Schaffers for several hours the Clewells started down the steps which conducted to the second floor to a point opposite an outside door which gave out on to the slanting roof of a porch. Believing that they had reached the first floor, Mrs. Clewell opened the door, which was unlocked, and stepped out, plunging to the ground beneath, dragging with her her husband whose hand she was holding.

[ 384 Pa. Page 518]

Mrs. Clewell's head struck the bumper of an automobile parked below, with resultant fractures of the skull. She also sustained fractures of the vertebra and numerous other injuries of a serious character. Mr. Clewell suffered injuries of his own.

In the ensuing trespass action against Frank and Minnie Pummer, the proprietors of the hotel, Harry and Helen Clewell recovered verdicts in the sums of $5,000 and $28,700, respectively, which verdicts were reversed by the Court of Common Pleas of Bucks County on the basis that the plaintiffs were guilty of contributory negligence as a matter of law. This appeal followed.

Photographs introduced at the trial depict the door through which the plaintiffs fell as one that could readily be mistaken as a ground floor exit. Its upper half was panelled in glass and covered with a lace curtain. It had the same general appearance as both outside doors on the first floor. There was no suggestion that this door might have been the entrance to another apartment or to a rest room. Its dress was specifically that of an outside door.

The steps coming down from the third to the second floor could easily convey the idea to the casual visitor that they were aiming at the curtain-covered door as a passageway to a first floor egress. The anemic glimmer from the feeble 15-watt bulb in the ceiling above shed no light on the true situation. There was nothing about the door, so far as the record shows, which would rebut the natural conclusion that it was a normal outlet from the building. The only question on this appeal is whether or not the plaintiffs should have known that they were in reality on the second floor, which knowledge should have vetoed their sensory perception that they had arrived at the ground level.

[ 384 Pa. Page 519]

The lower Court, having reversed on contributory negligence, regarded the question of defendants' negligence as moot. In view of the disposition we will make of the appeal we find it necessary to pass on the question of negligence as well as contributory negligence. In Held v. American Hotel Realty Corp., 378 Pa. 196, 198, we quoted with approval the following: "'Where a store, office building, or a similar business establishment to which the public is impliedly invited to resort has a door leading to a cellar, elevator shaft, or other dangerous place, which is left unfastened, and which from its location and appearance may be mistaken for a door which a member of the public on the premises is entitled to use, the proprietor is liable to a person who by mistake passes through that door and is injured.'" (20 A.L.R.Ann. 1147.)

In that case the front of the building had two doors, one leading into the lobby and the other opening into the cellar with precipitous but inconspicuous steps. The plaintiff fell down those steps. In affirming the plaintiff's verdict we said: "The proprietor of a business building is answerable in law if he maintains two identically-looking entrances one of which is safe and the other unsafe, and, because of that identity in appearance, a business visitor is injured. It is not for the visitor to guess which entrance is safe. If one of the entrances plunges perpendicularly into a cellar instead of leading horizontally to a ground floor level, the building proprietor is liable for resulting injuries unless suitable warnings have been posted informing the visitor of the accelerated and unintended destination to which the wrong door leads."

In the case at bar every rule of caution and care dictated the need for either keeping the roof door locked or posting it with a notice that it was not a proper ...


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