instant case it is sufficient to say that this court's observation is that under the circumstances in this case it was a jury question whether the step at the end of the ramp did or did not deviate from the standard customarily regarded as reasonable. It is, of course, realized that the country in this case had a discretion as to method and material, but was limited by the requirement that it was to furnish a reasonably safe way and need not use the best material nor the best method of construction. Miller v. City of Philadelphia, 345 Pa. 1, 25 A.2d 185.
But, a reasonably safe way in the case before me must take into consideration the crowded conditions and the almost impossibility of observation when the passageway is congested with people moving both ways over the pedestrian bridge. On the issue of defendant's negligence, the verdict of the jury will not be disturbed.
On Issue Whether Wife Plaintiff Guilty of Contributory Negligence.
Defendant strongly urges under familiar principles of Pennsylvania law that Mrs. Daniels, having ascended the step some four hours previous to her injury, was guilty of contributory negligence at the time she was injured under her own testimony. It is believed that she did not recall the step as she approached the end of the ramp, neither did she see it. It is a close question under Pennsylvania law as to whether Mrs. Daniels was guilty of contributory negligence. However, at the trial and now this court is convinced that the facts presented a jury question on the issue of her own negligence.
Defendant cites Wessner v. Blue Ridge Trans. Co., supra, as authority for the proposition that this court must declare that the wife plaintiff was contributorily negligent as a matter of law. The key to the decision in the case cited is the following sentence: "* * * On leaving, had she looked before plunging blindly into space, she must again have seen the floor below." And also, "* * * Her duty required her to observe what was so clearly visible." The facts in the Wessner case are far removed from the factual situation in the instant case.
In Hellriegel v. Kaufmann & Baer Co., 337 Pa. 149, 9 A.2d 370, also relied on by defendant, the plaintiff was injured while leaving the store by a dimly lighted exit which was unfamiliar to her. In so doing, she paid no attention to her surroundings or the other people around her and she fell down an unobserved step. In the opinion the court said:
'* * * Her own version of the accident conclusively shows that she substituted her past experience, in leaving the store by a doorway leading directly to the sidewalk, for the greater vigilance and care required by her use of an exit with which she was not familiar. Such lack of proper care convicts her of contributory negligence: Fordyce v. White Star Bus Lines, 304 Pa. 106.'
The last mentioned case differs on its facts in great degree from the issue presented by Mrs. Daniels' case. Plaintiff Hellriegel was leaving a building by an exist. Mrs. Daniels was 80 feet from the building. Had she fallen at the building exit, no doubt the case would be ruled by the Hellriegel v. Kaufmann & Baer decision. In the instant case Mrs. Daniels was in the passageway where her only movement was forward with the crowd. It is true that Mrs. Daniels like plaintiff Hellriegel should perhaps have been aware that persons ahead of her were descending the step, but the step in the instant case is but 7 5/8 inches in height on one end, and 10 5/8 inches in height on the other end, and there is but one step, whereas several steps appear in the Hellriegel decision. It is not believed that the cases which defendant cites on this issue are controlling. It seems to this court that to hold Mrs. Daniels negligent is to require her to recall and remember the step which she used four hours previously. The issue as to whether she should have remembered the step was left to the jury. Assuming, of course, that she did not remember the step, under her testimony and that of her companions, the step was not visible by ordinary and reasonable observation because of the congestion of people in the passageway. It is believed that the issue of contributory negligence which was left to the jury and decided favorable to Mrs. Daniels is a factual issue concluded by the verdict of the jury.
Motion for New Trial.
Failing on its motion for judgment n.o.v., defendant has moved for a new trial. This motion is independent from the motion for judgment notwithstanding the verdict. It is governed by different principles. The motion for a new trial is addressed to the trial judge's discretion and he should grant a new trial if he thinks there has been error, or if he thinks the verdict is incorrect, or if for any reason the trial judge is convinced that justice has not been done. In respect to this motion, it is also the duty of the court to review and weigh the evidence in order to determine whether the verdict was contrary to the weight of the credible evidence. See Marsh v. Illinois Cent. R. Co., 5 Cir., 175 F.2d 498; Magee v. General Motors Corp., 3 Cir., 213 F.2d 899; and Costack v. Pennsylvania R. Co., 376 Pa. 341, 102 A.2d 127.
In my opinion there was ample credible evidence to support the verdict of the jury. In the Wessner v. Blue Ridge Trans. Co. case, supra, part of the language used is as follows:
"* * * Common observation is enough to satisfy us that the defendants' rest room did not deviate from the standard customarily regarded as requisite by other reasonably careful persons under like circumstances * * *."
In the instant case, from the evidence especially the photographs, it is this court's observation that the step at the parking lot end of the curved pedestrian bridge is simply an engineering monstrosity. It is, of course, true that on entering the ramp from the parking lot there is no excuse for not observing the step. In the movement of persons toward the step from the parking lot they converge on the entrance piecemeal, so to speak, and by choice. On leaving the west end of the building, however, the situation is to the contrary. Pedestrians must leave by the one method and walk one step down to the ramp. On a crowded day such as the day being discussed here, the individuals in the crowd have no reasonable choice but to move forward with the others. A person walking in the congested mass of people moves in a closed corridor down a gradual descent, the descent being approximately 12 feet as the rate is .338 inches per foot for approximately 40 feet. A person walking along under those circumstances is lulled into a sense of security or freedom from watchfulness as there is no indication or sign that a step is located at the end of the ramp. Under the circumstances it is believed that the verdict of the jury was correct.
A new trial will be denied.
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