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HILLELSON v. RENNER (03/20/57)

March 20, 1957

HILLELSON
v.
RENNER, APPELLANT.



Appeal, No. 138, April T., 1956, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1953, No. 256, in case of Yetta Hillelson v. Ruth Renner. Judgment reversed.

COUNSEL

Joseph F. Weis, with him Weis & Weis, for appellant.

Earl J. Cavanaugh, with him Evans, Ivory & Evans, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Hirt

[ 183 Pa. Super. Page 149]

OPINION BY HIRT, J.

The defendant is the owner of a three-story brick dwelling house on Baywood Street in Pittsburgh. Her mother, the plaintiff in this action, and her brother, Leonard Hillelson, live with her there in a family relationship. After dark in the early evening of January 15, 1952, plaintiff left the house with her son Leonard, intending to go to a "movie". There are three concrete steps 12 to 15 feet wide, descending from a wooden porch on the front of the building to a concrete walk which extends from the foot of the steps to the sidewalk on Baywood Street. On leaving the house plaintiff's son preceded her and went to his automobile at the curb. Plaintiff after crossing the porch fell as she stepped on the second of the concrete steps, and was injured. She didn't know what caused her to fall. Her son Leonard was the only witness in the case other than plaintiff. He testified that when he came home from work, the evening before, he noticed 3 apple cores, two of them at "the bottom of the steps" and one on the second or middle step; and he told his sister to remove them. Thus there is evidence that the defendant

[ 183 Pa. Super. Page 150]

    had actual notice of the condition of the steps in this respect.

The only evidence on the subject of defendant's negligence is Leonard's testimony that when he came to plaintiff as she lay on the walk at the foot of the steps, he observed "an apple core and a heel mark just grooved in there" on the second step. On this testimony the jury found defendant chargeable with actionable negligence and awarded plaintiff $1,500 in damages. When plaintiff was asked: "as you walked down the steps did you see anything that would cause you to fall?" she answered: "I wasn't interested to look. I was just interested to come down to go to the show." She did not see the apple core on the step although the darkness did not prevent the son from seeing it. Nevertheless the plaintiff on this record cannot be charged with contributory negligence as a matter of law. In this appeal however we agree with the position taken on behalf of the defendant that the proofs do not establish that the injury was caused by any negligent act or omission of the defendant. There is reversible error in the refusal of the lower court to enter judgment in favor of the defendant n.o.v.

The plaintiff testified: "... as I walked down the steps on the second step my heel got caught and I fell down and I fell forward ... as I come down the second step on the porch, I got caught." Leonard took his mother to the hospital and the record there, based on his report of what she told him states that "she tripped". (Emphasis ours). In the light of the verdict this plaintiff is entitled to every favorable inference from this record but it must be noted that there is no direct evidence that plaintiff stepped on an apple core or that an apple core or any other foreign substance had anything to do with her fall.

[ 183 Pa. Super. Page 151]

The present appeal is ruled by the well settled principles set forth in Rogers v. S. Phila. Nat. Bank, 160 Pa. Superior Ct. 154, 50 A.2d 697 and in many like cases, to this effect: "Proof of injury alone or of negligence of a defendant without proof that the negligence caused the injury cannot establish liability", citing Burns v. City of Pittsburgh, 320 Pa. 92, 181 A. 487. "Proving that an accident happened, or the existence of an opportunity for it to happen is entirely insufficient to establish negligence. Stern v. Reading, 255 Pa. 96, 99 A. 367; Schlebach v. Boat Trades Association, 158 Pa. Superior Ct. 362, 45 A.2d 410." A plaintiff is required to show not only negligence on the part of the defendant "but that the injuries complained of were the result of such negligence (Reddington v. Philadelphia, 253 Pa. 390, 98 A. 601) ..." Specifically, Houston v. Republican Athletic Association, 343 Pa. 218, 22 A.2d 715 governs the present appeal. In that case the plaintiff's decedent fell and was fatally injured as he descended a stairway from a club room in the building occupied by the defendant. There were no witnesses to the fall but it was contended that it was caused by a splinter of wood on the edge of a step of the stairway on which deceased caught his foot, causing him to plunge headlong to a landing below. At the close of plaintiff's case a compulsory non-suit was entered which the lower court refused to take off. In affirming the judgment, the Supreme Court said: "In ...


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