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HARTIGAN v. CLARK. (06/03/57)

June 3, 1957

HARTIGAN, APPELLANT,
v.
CLARK.



Appeal, No. 15, March T., 1957, from order of Court of Common Pleas of Allegheny County, Oct. T., 1952, No. 2218, in case of William Hartigan v. Alyce Hoerr Clark, administratrix of estate of John P. Hoerr, deceased. Judgment affirmed.

COUNSEL

Harry Alan Sherman, for appellant.

H. A. Robinson, with him Dickie, McCamey, Chilcote & Robinson, for appellee.

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

Author: Jones

[ 389 Pa. Page 284]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

The appellant, William Hartigan, brought an action of trespass in the Court of Common Pleas of Allegheny County to recover damages for injuries he allegedly incurred in a fall down some stairs in the McKeesporter Hotel in the city of McKeesport.

The action was originally brought against John P. Hoerr, the owner of the hotel; upon his death Alyce

[ 389 Pa. Page 285]

Hoerr Clark, Administratrix of his estate, was substituted as defendant. The jury returned a verdict in favor of appellant in the amount of $20,000. The learned trial judge, the Honorable RUSSELL H. ADAMS, died before appellee's motions for judgment n.o.v. and for a new trial were argued. The court en banc, consisting of two judges, refused appellee's motion for judgment n.o.v. but granted her motion for a new trial. This appeal was then taken from that order.

Appellant testified, at trial, that on April 9, 1952, he entered the McKeesporter Hotel at about 5:30 p.m., intending to take his evening meal in the hotel dining room. He stated that he had not had anything to eat or drink all day. Upon entering the hotel, he decided that he would visit the lavatory before ordering his meal. The lavatory and the cocktail lounge of the McKeesporter are located on the basement level; to reach them it is necessary to descend stairs from the lobby level. Appellant testified that there was no light over the stairs; that there was merely a "greenishcast" light emanating from the basement level. He stated that this light showed the steps to be a light colored material which appeared worn but that he could not see the condition of the metal strips binding the front edges of the steps. After taking one complete step down from the landing he testified that he put his left foot on the second step whereupon his right toe caught in the edging of the first step and caused him to fall and suffer the injuries of which he complains.

Appellant's daughter testified that, on the day following the accident, she and her husband went to the hotel and inspected the stairs. She stated that the metal strip on the front edge of the first step below the landing was "curled upward" in the form of a hook about one-half inch in height for a distance of about 12 inches along the edge of the step and that

[ 389 Pa. Page 286]

    the metal strips edging that step and other steps were worn. Her husband did not testify at trial.

Appellee's witnesses gave an entirely different version of the happening of the accident and of the condition of the premises at the time of the accident.

The bartender who was on duty in the cocktail lounge at the time of the accident testified that he observed appellant coming down the steps between 6:30 and 7:00 p.m. - at least an hour later than appellant had testified. According to his testimony he could see approximately a foot and one-half above the landing and saw appellant reel or stagger, stop for a period of 30 seconds or so, and then collapse and fall. This testimony was substantially corroborated by a patron of the bar who observed the fall in a mirror behind the bar. Both witnesses testified that appellant smelled of alcohol when they went to ...


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