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BREAM v. BERGER (03/25/57)

March 25, 1957

BREAM
v.
BERGER, APPELLANT.



Appeal, No. 294, Jan. T., 1956, from judgment of Court of Common Pleas No. 4 of Philadelphia County, March T., 1954, No. 5621, in case of Margaret A. Bream v. Benjamin Berger, trading as Berger Cleaners, and Brith Achim Beneficial Association, a Corporation. Judgments reversed; reargument refused April 24, 1957.

COUNSEL

J. M. Marsh, with him Charles L. Ford, for appellant.

Thomas A. Masterson, with him Donald S. Waters, for appellee.

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

Author: Bell

[ 388 Pa. Page 434]

OPINION BY MR. JUSTICE BELL

Plaintiff brought an action in trespass to recover damages for personal injuries against the owner and tenant of a store at 277 South 11th Street, Philadelphia. She intended to have a skirt dry cleaned. She had the skirt and her pocketbook in her left hand; she went to the store, which she had been in half a dozen times before, between 7:30 and 8:00 o'clock on the morning of August 3, 1953. The entrance to the store is recessed between display windows on either side. There is an 8 3/4" step up onto the doorstep which leads into the store. The platform is 46" wide and from its outer edge to the door is 35 3/4". The door consists of a frame door which opens into the store and a screen door which opens out toward the street. Plaintiff stepped up onto the doorstep and reached for the screen door which she said was closed; she believes this required two steps (forward); she pulled open the

[ 388 Pa. Page 435]

    door and stepped back two steps, to allow for the sweeping are of the screen door; on her second step backward she landed on the pavement where she fell. She does not recall where she was looking when she stepped back onto the pavement but thinks she was looking at the signs in the window. It could be inferred from plaintiff's testimony that the screen door, when it was ajar, left her very little space to stand on the doorstep without stepping back on to the sidewalk. Of course, plaintiff must be given the benefit of the evidence which is most favorable to her together with all reasonable inferences therefrom.*fn*

For reasons unknown, defendants based their motion for judgment n.o.v. solely on the ground of plaintiff's contributory negligence, instead of on the dual ground of want of negligence by defendants and contributory negligence by plaintiff. We shall, therefore, limit this opinion to the question of contributory negligence.

We are convinced that plaintiff was guilty of contributory negligence as a matter of law: Druding v. Philadelphia, 374 Pa. 202, 97 A.2d 365; Bartek v. Grossman, 356 Pa. 522, 52 A.2d 209; Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A.2d 754.

In Druding v. Philadelphia, 374 Pa., supra, the Court said (pages 204-205): "Plaintiff was an invitee at the swimming pool and the City owned him the duty of reasonable care. However, as Mr. Justice JONES said in McCreery v. Westmoreland Farm Bureau, 357 Pa. 567, 570, 55 A.2d 399: 'There is no duty,

[ 388 Pa. Page 436]

    however, upon the possessor of land to warn or guard a business invitee against ...


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